Supreme Court Judgments

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R. v. Brown, [2002] 2 S.C.R. 185, 2002 SCC 32

 

David Benson                                                                                                   Appellant

 

v.

 

Jason D. Brown and Her Majesty The Queen                                           Respondents

 

and

 

The Federation of Law Societies of Canada,

Todd Ducharme, Peter Copeland and

the Criminal Lawyers’ Association (Ontario)                                              Interveners

 

Indexed as:  R. v. Brown

 

Neutral citation:  2002 SCC 32.

 

File No.:  28635.

 

2002:  January 23; 2002:  March 28.

 

Present:  McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.

 

on appeal from the superior court of justice for ontario

 


Criminal law – Fair trial – Full answer and defence – Solicitor-client privilege – Accused charged with murder – Third party allegedly confessing to murder to his lawyers – Accused seeking production of lawyers’ files – Whether trial judge properly applied threshold and innocence at stake tests set out in McClure – Proper scope of disclosure order – Degree of immunity to be provided to privilege holder.

 

About three weeks after a man who had been found stabbed in the chest died in hospital, R told the police that her then boyfriend, the appellant, had told her that he was the person who had killed the deceased; she said that he had also told her that he had confessed to his lawyers.  The police investigated the appellant in relation to the homicide for a number of months.  The investigation included a consent wiretap of R’s home telephone and the interception of her communications with the appellant using a body pack.  Armed with a search warrant, the police seized clothing, knives and footwear from the appellant’s residence.  All items tested negative for the blood of the deceased.  The appellant has since denied killing the deceased.  The appellant was never charged with respect to the murder and the investigation against him was dropped. 

 


The accused was seen looking for the deceased on the morning the deceased was killed.  A videotape showed the accused entering his own apartment building, located one block from the crime scene, less than an hour after the deceased had been found stabbed.  Under warrant, the police seized from the accused’s apartment a napkin with the deceased’s pager number on it.  The accused was charged with the deceased’s murder shortly after a jailhouse informant reported that he had overheard a conversation between the accused and a third inmate.  According to the informant, the accused told the third inmate that he had purchased drugs from the deceased and stabbed him.  Although the informant was called as a witness at the preliminary hearing, the prosecutor has not yet received approval from the Attorney General’s in-custody informer committee to call him at trial.  The accused brought a McClure application for an order compelling production of the files, documents and notes, if any, relating to communications between the appellant and his lawyers concerning the appellant’s involvement in the deceased’s death.  The motions judge found that the accused had satisfied both the threshold question and the innocence at stake test of the McClure application.  He ordered production of one document and portions of other documents.

 

Held:  The appeal should be allowed and the motions judge’s order for production set aside.

 

Per McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie and LeBel JJ.:  The McClure test for infringing solicitor-client privilege is stringent, and will only be satisfied in rare circumstances.  Before the test is even considered, the accused must establish that the information he is seeking in the solicitor-client file is not available from any other source and that he is unable to raise a reasonable doubt as to his guilt in any other way.  “Information” in the context of this threshold question must mean more than simple knowledge of a fact.  A McClure application should only succeed on the threshold question if the accused does not have access to other information that will be admissible at trial.  In this case the accused had another source of information regarding the appellant’s confession in the form of R’s testimony.  However, the motions judge expressed serious concerns about the admissibility of such testimony and about whether, if admissible, it would be believed at trial.  In the end, having interpreted “information” as meaning “potentially substantively usable and reliable evidence”, the motions judge concluded that the privileged information was not otherwise available.

 


The motions judge reached this conclusion prematurely.  While there are undoubtedly some obstacles to the admission of R’s evidence, it is not clear that it will be inadmissible.  First, there is a significant degree of necessity to her testimony, in that, absent a successful McClure application, it is the only evidence of the appellant’s confession, which may exculpate the accused.  Second, it may be considered sufficiently reliable to be admitted under an exception to the hearsay rule.  Finally, there is some potential that the confession to R may be admissible as a declaration against penal interest.  The motions judge ought to have held a voir dire to determine the admissibility of R’s hearsay testimony before concluding that the requested information was not available from another source.  If it is found to be admissible, then the McClure application should fail on the threshold question because the requested information is available from another source as admissible evidence.  Furthermore, prior to ruling on the McClure application, the motions judge should have decided whether the appellant waived his solicitor-client privilege by telling R about his solicitor-client communications.  Only if the motions judge had concluded that there was no waiver and that R’s testimony was inadmissible should he have proceeded to the other elements of the McClure test.

 

The motions judge erred in reaching his conclusion that the accused could not raise a reasonable doubt as to his guilt in any other way.  Although it is too early to decide the issue, with only circumstantial evidence it is speculative that the Crown could prove its case against the accused beyond a reasonable doubt.  The only other evidence that may implicate the accused is that of the jailhouse informant who allegedly overheard the accused confessing to another inmate.  As there has yet been no decision to call the informant to testify, it would be premature to conclude that the accused will be unable to raise a reasonable doubt without invading the appellant’s solicitor-client privilege. 

 

The motions judge applied the first stage of the innocence at stake test correctly.  There was a sufficient evidentiary basis to find that some solicitor-client communications exist.  Further, the solicitor-client communications, if they exist, are capable of raising a reasonable doubt as to the accused’s guilt. 


While a McClure application should not be used as a discovery process to allow the defence or the trial judge to interrogate the solicitor, the disclosure should not be strictly limited to written communications contained in the file.  The rationale for breaching privilege with respect to written materials is equally applicable to oral communications.  An accused should not face the likelihood of wrongful conviction simply because a third party’s solicitor-client communications were not committed to paper.

 

Privilege holders whose solicitor-client communications are disclosed pursuant to a McClure application must be protected by the residual principle against self-incrimination contained in s. 7  of the Canadian Charter of Rights and Freedoms .  The privilege holder should be subject to the same Charter  protections that would apply had he been compelled to testify as a witness, namely, use immunity and derivative use immunity.  Use and derivative use immunity should prohibit the Crown both from using the communications as direct evidence against the privilege holder and from using the communications to impeach the privilege holder if and when he is himself an accused.  That does not mean, however, that the disclosure of privileged information under a McClure application should give rise to so-called “transactional” immunity (i.e., immunity from any future criminal prosecution for the crimes which are the subject of the solicitor-client communications). 

 


Per L’Heureux‑Dubé and Arbour JJ.:  Major J.’s reasons were agreed with, subject to the following additional comments.  In the course of McClure applications, trial judges should examine all alternatives to infringing the solicitor-client privilege in the same spirit and with the same flexibility as the policy considerations that led to the creation of the McClure rule in the first place.  A court has the discretion to relax strict rules of evidence in favour of the accused where it is necessary to prevent a miscarriage of justice.  Logic, principle and policy dictate that if one of the most stringent exclusionary rules, the solicitor-client privilege, is to yield to concerns about convicting an innocent person, other exclusionary rules should yield first.  In the case of hearsay, threshold concerns about necessity and reliability, which reflect issues of fairness to the opponent in the adversary system, should be weighed against the dangers of convicting an innocent person and the undesirability of intruding into confidences made to a solicitor.

 

Cases Cited

 

By Major J.

 

Applied:  R. v. McClure, [2001] 1 S.C.R. 445, 2001 SCC 14;  referred to:  R. v. Williams (1985), 50 O.R. (2d) 321; Chambers v. Mississippi, 410 U.S. 284 (1973); R. v. Brooks, [2000] 1 S.C.R. 237, 2000 SCC 11; R. v. O’Connor, [1995] 4 S.C.R. 411; Smith v. Jones, [1999] 1 S.C.R. 455; Boucher v. The Queen, [1955] S.C.R. 16; R. v. Stinchcombe, [1991] 3 S.C.R. 326; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; R. v. P. (M.B.), [1994] 1 S.C.R. 555; R. v. Jones, [1994] 2 S.C.R. 229; R. v. Fitzpatrick, [1995] 4 S.C.R. 154; R. v. White, [1999] 2 S.C.R. 417; R. v. S. (R.J.), [1995] 1 S.C.R. 451; British Columbia Securities Commission v. Branch, [1995] 2 S.C.R. 3; R. v. Stillman, [1997] 1 S.C.R. 607; R. v. Burlingham, [1995] 2 S.C.R. 206; R. v. Calder, [1996] 1 S.C.R. 660; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; A. (L.L.) v. B. (A.), [1995] 4 S.C.R. 536; R. v. Adams, [1995] 4 S.C.R. 707; R. v. Mentuck, [2001] 3 S.C.R. 442, 2001 SCC 76.

 


By Arbour J.

 

Applied:  R. v. McClure, [2001] 1 S.C.R. 445, 2001 SCC 14; referred to:  R. v. Williams (1985), 50 O.R. (2d) 321; Dersch v. Canada (Attorney General), [1990] 2 S.C.R. 1505; R. v. Rowbotham (1988), 41 C.C.C. (3d) 1; R. v. Finta,  [1994] 1 S.C.R. 701, aff’g (1992), 73 C.C.C. (3d) 65; R. v. Khan, [1990] 2 S.C.R. 531; R. v. B. (K.G.), [1993] 1 S.C.R. 740.

 

Statutes and Regulations Cited

 

Canada Evidence Act, R.S.C. 1985, c. C-5, s. 5(2)  [repl. 1997, c. 18, s. 116].

 

Canadian Charter of Rights and Freedoms, ss. 7 , 11 (c), 13 .

 

Criminal Code, R.S.C. 1985, c. C-46, ss. 278.1 -278.91  [ad. 1997, c. 30, s. 1], 278.7(3) [idem], 674, 675, 690.

 

Supreme Court Act, R.S.C. 1985, c. S-26, s. 40(1)  [rep. & sub. 1990, c. 8, s. 37].

 

Authors Cited

 

Berger, Mark.  Taking the Fifth:  The Supreme Court and the Privilege Against Self-Incrimination.  Lexington, Mass.:  Lexington Books, 1980.

 

Proulx, Michel, and David Layton.  Ethics and Canadian Criminal Law.  Toronto:  Irwin Law, 2001.

 

APPEAL from judgments of the Ontario Superior Court of Justice, [2001] O.J. No. 3408 (QL), [2001] O.J. No. 3409 (QL).  Appeal allowed.

 

Richard G. Litkowski, for the appellant.

 


John M. Rosen, for the respondent Jason D. Brown.

 

Christine Bartlett-Hughes, for the respondent Her Majesty the Queen.

 

Clayton C. Ruby, for the intervener the Federation of Law Societies of Canada.

 

Anil K. Kapoor, for the interveners Todd Ducharme and Peter Copeland.

 

Leslie Pringle, for the intervener the Criminal Lawyers’ Association (Ontario).

 

The judgment of McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie and LeBel JJ. was delivered by

 

MAJOR J. --

 

I.  Introduction

 

1                                   This appeal deals with the application of the test set out in R. v. McClure, [2001] 1 S.C.R. 445, 2001 SCC 14.  It raises again the competing interests of solicitor-client privilege and an accused’s right under s. 7  of the Canadian Charter of Rights and Freedoms  to make full answer and defence.  Both are fundamental tenets of our system of justice.  In McClure, this Court recognized that solicitor-client privilege is not absolute and may, in rare circumstances, be required to yield in order to permit an accused to make full answer and defence to a criminal charge.

 


2                                   While it is impossible to place either right higher on a hierarchy, as these reasons hope to explain, Canadians’ abhorrence at the possibility of a faulty conviction tips the balance slightly in favour of innocence at stake over solicitor-client privilege.  A similar decision on public policy has been made to protect the identity of informants.

 

3                                   However, it was also emphasized in McClure, at para. 5, that “the occasions when the solicitor-client privilege yields are rare and the test to be met is a stringent one”.  While obvious, the Court reiterated that any erosion of the absolute nature of solicitor-client privilege would of necessity cause some damage to the solicitor-client relationship.  McClure should be considered as determining that the appropriate test is one of innocence at stake, such that solicitor-client privilege “should be infringed only where core issues going to the guilt of the accused are involved and there is a genuine risk of wrongful conviction” (para. 47).  It is intended to be a rare exception and used as a last resort.

 

4                                   The McClure test comprises a threshold question and a two-stage innocence at stake test, which proceed as follows:

 

-      To satisfy the threshold test, the accused must establish that:

 

-   the information he seeks from the solicitor-client communication is not available from any other source; and

 

-   he is otherwise unable to raise a reasonable doubt.

 

-      If the threshold has been satisfied, the judge should proceed to the innocence at stake test, which has two stages.


-   Stage #1:  The accused seeking production of the solicitor-client communication has to demonstrate an evidentiary basis to conclude that a communication exists that could raise a reasonable doubt as to his guilt.

 

-   Stage #2:  If such an evidentiary basis exists, the trial judge should examine the communication to determine whether, in fact, it is likely to raise a reasonable doubt as to the guilt of the accused.

 

-      It is important to distinguish that the burden in the second stage of the innocence at stake test (likely to raise a reasonable doubt) is stricter than that in the first stage (could raise a reasonable doubt).

 

-      If the innocence at stake test is satisfied, the judge should order disclosure of the communications that are likely to raise a reasonable doubt, in accordance with the guiding principles discussed infra.

 

5                                   In the present appeal, I respectfully conclude that the motions judge’s decision to grant the accused access to materials protected by a third party’s solicitor-client privilege was premature.  It was not clear at the time that the privileged information was not available from another source.  Nor was it clear that the privileged information was necessary for the accused to raise a reasonable doubt.  Moreover, as there were indications that the privilege may have been waived by voluntary disclosure, that issue should have been resolved before an infringement of a valid privilege was contemplated.  In short, the accused’s innocence was not at stake, and the McClure application should not have been granted.  The appeal is allowed.

 


II.  Facts

 

6                                   At approximately 4:00 a.m. on July 21, 1998, Shaun Baksh was discovered lying on the east side of Barrington Avenue in Toronto.  He had been stabbed in the chest and died a short time later at St. Michael’s Hospital.  The subsequent autopsy confirmed that he had received a single knife wound to the heart.

 

7                                   On August 12, 1998, Donna Robertson told two homicide detectives that her then boyfriend, the appellant, David Benson, had told her that he was the person who had killed Baksh.  According to Robertson’s account, Benson told her that he had  gone out to the fire escape one night when he could not sleep.  A man with an accent approached him and offered to sell him drugs.  Benson declined, but he persisted and put his arm around Benson.  Benson told the man to “back off” and, when he refused, Benson pulled a knife and stabbed him.  The man then staggered away through the adjacent park and then west toward Barrington Avenue.  Benson threw away the clothes that he was wearing, except for his shoes.

 

8                                   Robertson also told the police that Benson told her that he had confessed to his lawyers, Edward Greenspan, and later Todd Ducharme and Peter Copeland.  She said that she had gone with Benson to meet Mr. Copeland, and that he had provided them with business cards on which he wrote words that purported to invoke the right to silence in the face of police questioning.  Robertson produced her card to the police.

 


9                                   The police investigated Benson in relation to the homicide for a number of months.  The investigation included a consent wiretap of Robertson’s home telephone and the interception of her communications with Benson using a body pack.  Armed with a search warrant, the police seized clothing, knives and footwear from Benson’s residence.  All items tested negative for the blood of the deceased.  Benson has since denied killing Baksh.  Benson was never charged with respect to the murder and the investigation against him was dropped.

 

10                               The respondent Jason Brown was seen looking for Baksh on the morning that Baksh was killed.  Brown was also looking for a mountain bike that he had allegedly fronted to Baksh as part of a drug deal.  Witnesses stated that Brown had in his possession a napkin, on which Baksh’s pager number was written in red ink.  A videotape showed Brown entering his own apartment building, located one block from the crime scene, at 4:47 a.m. on July 21, 1998, less than an hour after Baksh had been found stabbed.

 

11                               On July 29, 1998, under warrant, the police seized from Brown’s apartment, among other things, a napkin with the deceased’s pager number on it.  Brown entered his apartment during the search and provided a statement to the police in which he denied knowing the deceased, denied knowing anything about a mountain bike, and said that he had been home on the night of the homicide.

 

12                               On July 31, 1998, with counsel present, Brown gave a second statement to the police.  In this statement, he said that he had bought cocaine from the deceased three times on the night and early morning of the homicide.  On the third such time, Brown said that he had no money and therefore fronted a stolen mountain bike for more cocaine.  Brown wanted the bike back and said that he would bring money later for the cocaine.  He denied killing Baksh.

 


13                               Brown was charged with Baksh’s murder on November 1, 1999.  Prior to that date, the police claimed to lack reasonable and probable grounds to charge either Benson or Brown with the homicide.  Brown’s charge came shortly after a jailhouse informant, who had shared a cell with Brown at the Toronto jail in November 1998, reported that he had overheard a conversation between Brown and a third inmate, McDoom.  According to the informant, Brown told McDoom that he had purchased drugs from Baksh, stabbed him, and taken a bag of crack cocaine.

 

14          Although the informant was called as a witness at the preliminary hearing, the prosecutor has not yet received the approval of the “In-Custody Informer Committee” within the office of the Attorney General to call the informant at trial.  The Committee is waiting for the final determination of Brown’s McClure application and a further determination of whether the Crown may review the material ordered disclosed to Brown in order to assess the reliability of the informant.

 

III.  Relevant Statutory Provision

 

15          Canadian Charter of Rights and Freedoms 

 

7.  Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

 

IV.  Judicial History

 

A.     Ontario Superior Court of Justice, Motions Judge’s Ruling on the First Stage of the McClure Application, [2001] O.J. No. 3408 (QL)

 


16                               The respondent accused brought an application for an order compelling production of the files, documents and notes, if any, relating to communications between David Benson and his lawyers concerning Benson’s involvement in the death of Shaun Baksh.  The application was made in accordance with McClure, supra.

 

17                               Dambrot J. issued two rulings.  The first was to determine the threshold question and first stage of the innocence at stake test of the McClure application.  The threshold question was set out at para. 48 of McClure:

 

Before the test is even considered, the accused must establish that the information he is seeking in the solicitor-client file is not available from any other source and he is otherwise unable to raise a reasonable doubt as to his guilt in any other way.

 

18                               After reviewing the evidence, Dambrot J. inquired whether the information sought was available from another source, and noted that he found the test difficult to apply.  In particular, he discussed two possible interpretations of the threshold question:  “whether this requires the accused to show that he cannot find evidence of a fact other than in the file, or whether he or she must establish that the information in the file is not otherwise available” (para. 9 (emphasis in original)).  He selected the first interpretation (at para. 9):

 

After all, while the circumstances when the privilege should give way are narrow, the rationale for setting aside the privilege is clear:  the privilege will yield where it stands in the way of an innocent person establishing his or her innocence.  Viewed in that light, it becomes apparent that where the accused has information about a fact, but the solicitor’s file will yield evidence of that fact, and the evidence is not otherwise available, then the prerequisite is met.  [Emphasis added.]

 


19                               He then reviewed the relevant facts and concluded that, “viewed as potentially substantively usable and reliable evidence” (para. 10), the privileged information sought by the accused was not available from any other source.  First, Benson himself would not testify that he killed Baksh.  Second, while the intercepted personal communications between Benson and Robertson contain an adoption of the fact that he confessed to her, they also contain a denial of the truth of the underlying confession.  Finally, both the intercepted communications and Benson’s confession to Robertson suffered from “evidentiary impediments” (para. 10) that would hinder their use as admissible evidence at trial.  Benson and Robertson had been drinking heavily at the time of his confession to her, and their relationship was a stormy one that was apparently coming to an end.  Thus, there would be some doubt as to the reliability of Robertson’s evidence about Benson’s confession to her.

 

20                               In contrast, Benson’s alleged confession to his legal advisors would likely be seen as more reliable.  There would unlikely be any doubt as to the reliability of the solicitors’ notes, or any suggestion that the confession was induced by alcohol.  Further, while it is true that clients may lie to their legal advisors from time to time, it would be unusual for a client to make a false confession to a murder.  Therefore, while Benson’s alleged confession to his lawyers is just as much hearsay as his confession to Robertson, it has a better chance of being admitted into evidence due to its enhanced reliability.  In conclusion, Dambrot J. found that Brown had satisfied the first element of the threshold test.

 


21                               The motions judge then proceeded to the second requirement of the threshold test:  whether the accused had established that he was unable to raise a reasonable doubt about his guilt in any other way.  Dambrot J. commented that this question was difficult to answer prior to trial, as there was little basis on which to assess the accused’s jeopardy.  Nevertheless, he noted that, if the determination on this issue were delayed until after the Crown’s case, it would have implications for the “orderly conduct of the trial” (para. 12).  In the end, Dambrot J. concluded that the second part of the threshold test merely required the trial judge “to consider whether there is, in the particular circumstances of the case, a genuine danger of wrongful conviction” (para. 13).  He found that there was such a danger in this case.

 

22                               Next, Dambrot J. considered the first stage of the innocence at stake test, as outlined by this Court at para. 50 of McClure, supra:

 

At the first stage, the accused seeking production of a solicitor-client communication must provide some evidentiary basis upon which to conclude that there exists a communication that could raise a reasonable doubt as to his guilt.

 

Dambrot J. found that Brown had established a sufficient evidentiary basis upon which to conclude that the privileged communication exists.  Robertson’s statement to the police suggested that Benson had confessed to Mr. Greenspan and that he, in turn, had recommended Mr. Copeland and Mr. Ducharme to him.  In addition, Robertson had produced the business card with instructions purporting to invoke the right to silence in the face of police questioning.  Dambrot J. also found that Benson’s confession, if it exists, was capable of raising a reasonable doubt as to Brown’s guilt.  Therefore, Brown had satisfied the first element of the innocence at stake test.  Dambrot J. accordingly ordered that the relevant files be produced to the court for examination.

 

B.       Ontario Superior Court of Justice, Motions Judge’s Ruling on the Second Stage of the McClure Application, [2001] O.J. No. 3409 (QL)

 

23                               After reviewing the files, Dambrot J. issued a second ruling which dealt with the second stage of the test in McClure, at para. 57:

 


. . . the trial judge must examine that record to determine whether, in fact, there exists a communication that is likely to raise a reasonable doubt as to the accused’s guilt.  The trial judge must ask herself the following question: “Is there something in the solicitor-client communication that is likely to raise a reasonable doubt about the accused’s guilt?”  [Emphasis in original.]

 

After some discussion of whether this stage of the test required him to hear the testimony of counsel who made the notations in the files, Dambrot J. concluded that he could make the determination without amplifying the record.

 

24                               The motions judge found that the evidence in the files was likely to raise a reasonable doubt as to Brown’s guilt.  In response to Benson’s counsel’s argument that the evidence “put the accused no further ahead” than did the information already available to him, Dambrot J. stressed “the significance of the source of the information, coming as it does from solicitors’ files, and the potential cumulative effect of evidence coming from multiple sources” (para. 8).  In the end, Dambrot J. ordered production of one document and portions of other documents.

 

V.  Issues

 

25                               1.  Is McClure applicable?

 

2.  Did Dambrot J. properly apply the threshold and innocence at stake tests in this case?

 

3.  In hearing a McClure application, does the trial judge have discretion to permit amplification of the record?

 

 


4.  What is the proper scope of a disclosure order made pursuant to a McClure application?

 

5.  If privileged communications are disclosed, what degree of immunity should be provided to the privilege holder?

 

VI.  Analysis

 

A.  Is McClure Applicable?

 

26                               The issue of waiver was raised at the hearing.  Particularly, when Benson told Robertson what was said between him and his lawyers, did Benson waive the solicitor-client privilege as to those communications?  Counsel for Brown indicated that he intended to raise this issue in the event that he was unsuccessful on the McClure application.  This, like many of the issues relating to the threshold test discussed infra, goes to the issue of timing.

 

27                               As stated in McClure and repeated here, this Court views the invasion of the solicitor-client privilege to be serious, with the potential to restrict solicitor-client communications and thereby to undermine the public perception of the protection of the client in the legal system.  Piercing solicitor-client privilege should be treated as an extraordinary measure, performed only in accordance with McClure, i.e., as a last resort when innocence is at stake.

 


28                               The tests set out in McClure related to the invasion of solicitor-client privilege.  Of primary importance in determining whether to consider a McClure application is whether the information that is sought is in fact protected by solicitor-client privilege.  When there is the suggestion that a client may have waived his or her privilege, that issue should be dealt with first.  If there is no privilege that bars access to the information, there is no need to proceed further with a McClure application.   Here, that issue remains to be decided.

 

B.  The Test in McClure

 

29                               As indicated, the McClure test for infringing solicitor-client privilege is stringent, and will only be satisfied in rare circumstances.  The test is found at paras. 47-51 of McClure:

 

In recognition of the central place of solicitor-client privilege within the administration of justice, the innocence at stake test should be stringent.  The privilege should be infringed only where core issues going to the guilt of the accused are involved and there is a genuine risk of a wrongful conviction.

 

Before the test is even considered, the accused must establish that the information he is seeking in the solicitor-client file is not available from any other source and he is otherwise unable to raise a reasonable doubt as to his guilt in any other way.

 

                                                                   . . .

 

The innocence at stake test is applied in two stages in order to reflect the dual nature of the judge’s inquiry.  At the first stage, the accused seeking production of a solicitor-client communication must provide some evidentiary basis upon which to conclude that there exists a communication that could raise a reasonable doubt as to his guilt.  At this stage, the judge has to decide whether she will review the evidence.

 

If the trial judge is satisfied that such an evidentiary basis exists, then she should proceed to stage two.  At that stage, the trial judge must examine the solicitor-client file to determine whether, in fact, there is a communication that is likely to raise a reasonable doubt as to the guilt of the accused.  It is evident that the test in the first stage (could raise a reasonable doubt) is different than that of the second stage (likely to raise a reasonable doubt).  If the second stage of the test is met, then the trial judge should order the production but only of that portion of the solicitor-client file that is necessary to raise the defence claimed.

 


C.  Application to the Case at Bar

 

(1)  The Threshold Test

 

(a)   Is the Information Available from Any Other Source?

 

30                               In order to properly apply the threshold test, it is first necessary to determine what is meant by the term “information” in this context.  Dambrot J. concluded that the “information” must have some evidentiary value to be considered  “available” under this part of the test. Conversely, the appellant suggests that “information” should be given an interpretation consistent with its ordinary meaning, that is, some knowledge of a fact.

 

31                               In order to have any logical and practical force, “information” in the context of a McClure application must be assessed in light of other information that may not be admissible at trial.  Otherwise, it would be virtually impossible to succeed on any McClure application.  For an accused to believe that a document protected by solicitor-client privilege contains information pertaining to his innocence,  he must necessarily have some basis to suspect that such privileged information exists.  An accused cannot magically divine that a third party’s solicitor-client communications contain information that will prove his innocence.  In almost every case, the accused’s belief will be based on some other fact that has come to his attention.  Further, as noted by M. Proulx and D. Layton in Ethics and Canadian Criminal Law (2001), a lawyer cannot disclose privileged communications unless ordered to do so by a court, even though “[o]ften the lawyer will alone be aware of the exculpatory information, meaning that no other interested party has any reason or basis to invoke the court process in order to defeat the privilege” (p. 183).

 


32                               In the present case, Brown became aware of Benson’s alleged confession as a result of Robertson’s statement to the police.  Thus, strictly speaking, the “information” sought by Brown is available from another source, Robertson's statement.  Benson submitted that, because Robertson’s statement is known by Brown, the information is available even if it is not admissible at trial.  This proposition cannot stand.  Of necessity, any McClure application will be based on some “information” that a potentially exculpatory third party solicitor-client communication exists.  It would be illogical to deny the accused access to the solicitor-client communication solely because he has access to “information” about its existence.  The question at this point becomes whether there is alternative information as to the contents of the communication.

 

33                               Moreover, to jump ahead to the innocence at stake test, it is noteworthy that the first stage requires an accused to provide some evidentiary basis for believing that a privileged communication exists that could exculpate him.  This evidentiary basis will invariably consist of  information concerning the alleged communication that has come to the attention of the accused.

 

34                               McClure allows for the invasion of solicitor-client privilege when necessary to permit an accused to raise a reasonable doubt about his guilt.  Necessity is to be considered in the context of a legal proceeding, and can be demonstrated when the information sought in the solicitor-client communication is not otherwise admissible at trial.

 

35                               It is clear that “information” in the context of the threshold question in a McClure application must mean more than simple knowledge of a fact.  A McClure application should only succeed on the threshold question if the accused does not have access to other information that will be admissible at trial.


 

36                               Returning to the present appeal, the Court must determine whether  the information sought in this case -- Benson’s alleged confession -- is available from any other source.  More specifically, did Brown have access to admissible evidence of Benson’s confession from any other source?

 

37                               The record establishes that Brown had another source of information regarding Benson’s confession in the form of Donna Robertson’s testimony.  However, Dambrot J. expressed serious concerns about the admissibility of such testimony and about whether, if admissible, it would be believed at trial.  In particular, both Benson and Robertson had been drinking at the time of the alleged confession, and their stormy relationship was apparently coming to an end.  Moreover, Benson subsequently denied confessing to Robertson.  These factors led Dambrot J. to believe that Robertson’s testimony might not be admitted under an exception to the hearsay rule and that, even if admitted, there might be significant challenges to the credibility of her testimony.

 

38                               In contrast, the motions judge believed that Benson’s alleged confession to his solicitors rested on better evidentiary footing.  While Dambrot J. acknowledged that it was “legally in no different position than his confession to Robertson” ([2001] O.J. No. 3408 (QL), at para. 10) in that it too was hearsay, he reasoned that it had a better chance of being admitted and believed due to its enhanced reliability.  Benson’s confession to his solicitors was not likely to be clouded to the same extent as his confession to Robertson, and the solicitors would have no personal reasons to implicate him in a murder.  Moreover, Dambrot J. reasonably thought that it would be unusual for a person to lie to his own solicitors by making a false murder confession.

 


39                               In the end, having interpreted “information” as meaning “potentially substantively usable and reliable evidence” (para. 10), Dambrot J. concluded that the privileged information was not otherwise available.

 

40                               However, with respect, Dambrot J. reached this conclusion prematurely.  While there are undoubtedly some obstacles to the admission of Donna Robertson’s evidence, it is not clear that it will be inadmissible.  First, there is a significant degree of necessity to her testimony, in that, absent a successful McClure application, it is the only evidence of Benson’s confession, which may exculpate the accused.  Second, it may be considered sufficiently reliable to be admitted under an exception to the hearsay rule.

 

41                               Finally, there is some potential that the confession to Robertson may be admissible as a declaration against penal interest.  Although this exception to the hearsay rule has historically been reserved for cases where the declarant is deceased or otherwise unavailable, there is a suggestion in the Ontario Court of Appeal case of R. v. Williams (1985), 50 O.R. (2d) 321, that this requirement may be relaxed in some circumstances.  In that case, Martin J.A. discussed the United States Supreme Court decision of Chambers v. Mississippi, 410 U.S. 284 (1973), where the court found that confessions made by a third party were admissible, notwithstanding that the third party declarant was available and, in fact, did testify at the accused’s trial.  Powell J. noted, at pp. 300-301, that the statements were made “under circumstances that provided considerable assurance of their reliability”, and that, “whatever may be the parameters of the penal-interest rationale, each confession here was in a very real sense self-incriminatory and unquestionably against interest”.

 


42                               While Martin J.A. found that such circumstances did not exist in Williams, he did not disagree with the proposition that the rules of evidence might be relaxed in certain circumstances where necessary to provide a fair trial.  Later in the judgment, on a separate issue, Martin J.A. commented that “a court has a residual discretion to relax in favour of the accused a strict rule of evidence where it is necessary to prevent a miscarriage of justice and where the danger against which an exclusionary rule aims to safeguard does not exist” (p. 343 (emphasis added)).  This suggests that, where there are some assurances of reliability and where necessary to avoid wrongful conviction, some rules of evidence may be applied with something less than their usual degree of rigour.

 

43                               In any event, these observations are not intended to comment on the validity of any of the above arguments regarding the admissibility of Donna Robertson’s evidence.  They are only raised to indicate that the inadmissibility of Robertson’s testimony should not be considered a foregone conclusion.

 

44                               Indeed, if a trial judge allows a McClure application on the basis that another source of the requested information is potentially inadmissible at trial, she runs the risk of her conclusion being subsequently undermined if the alternative source is ultimately found to be admissible.  The accused will then have gained access to solicitor-client privileged information in a situation where that information was, in fact, available from another source, and will have succeeded in unnecessarily destroying a solicitor-client privilege.  Such a result directly conflicts with the stringent nature of the innocence at stake test, which seeks to maximize the protection for the privilege.

 


45                               In this case, Dambrot J. ought to have held a voir dire to determine the admissibility of Donna Robertson’s hearsay testimony before concluding that the requested information was not available from another source. If it is found to be admissible, then the McClure application should fail on the threshold question because the requested information is available from another source as admissible evidence.  As will be discussed infra, the relative quality of the solicitor’s evidence does not make it “different” information from that already available from Donna Robertson.  If Robertson’s evidence is admissible, the solicitor-client communications will provide no additional “information” regardless of their enhanced reliability.  Furthermore, prior to ruling on the McClure application, the motions judge should have decided whether Benson waived his solicitor-client privilege by telling Robertson about his solicitor-client communications.  Only if Dambrot J. had concluded that there was no waiver and that Robertson’s testimony was inadmissible should he have proceeded to the other elements of the McClure test.

 

(b)  Can the Accused Raise a Reasonable Doubt as to his Guilt in Any Other Way?

 

46                               This second element of the threshold test raises significant procedural issues, particularly regarding the proper timing of a McClure application.  These issues obviously troubled the motions judge (at paras. 12-13):

 

It is of course indisputable that if the accused can raise a reasonable doubt without access to the solicitor-client file, then his or her innocence would not be at stake, and access to the file would be unnecessary.  But how is a trial judge to assess whether or not the accused can raise a reasonable doubt in the minds of the jurors, without usurping the jury’s function?  Perhaps the matter should be left until the Crown’s case is complete, so that the judge would be better able to assess the extent of the accuser’s [sic] jeopardy.  But the implications for the orderly conduct of the trial, and the avoidance of undue delay and disruption for the jurors should such a course be followed need hardly be mentioned.  Moreover, even at the end of the Crown’s case, the judge is not in a position to meaningfully predict the outcome of the trial.

 

In the end, I conclude that what Major J. was imposing on trial judges was simply an obligation to consider whether there is, in the particular circumstances of the case, a genuine danger of wrongful conviction.  On the basis of the evidence before me, I can only conclude that in this case, there is.

 


47                               With respect, Dambrot J. erred in reaching his conclusion on this issue.  The test established in McClure was intended to carefully screen requests for access to solicitor-client communications and to allow such access only when the accused has shown that he has no other defence and that the requested communications would make a positive difference in the strength of the defence case.  As acknowledged in McClure, the solicitor-client privilege is fundamental to Canada’s justice system and will yield only in rare circumstances.

 

48                               In every trial based on circumstantial evidence alone, there exists a “genuine danger of wrongful conviction”.  Based on Dambrot J.’s interpretation, the Crown’s reliance on circumstantial evidence would thereby trigger the opportunity for the accused to infringe a third party’s solicitor-client privilege.  Obviously, this runs counter to the nature of the threshold test.  The test stipulates that privilege should only be violated where the accused cannot raise a reasonable doubt in any other way.  However, in a case based entirely on circumstantial evidence, it is more likely that the defence will be able to raise a reasonable doubt, and the risk of conviction will typically be less than in cases where there is direct evidence linking the accused to the crime.  It would be illogical to weaken the threshold test in cases where the likelihood of conviction is weakest.

 


49                               With respect, Dambrot J. erred in his application of the threshold test to the facts of this case.  Although it is too early to decide the issue, I note that it may be possible for Brown to raise a reasonable doubt as to his guilt by other means.  As indicated, absent the testimony of the jailhouse informant, the case against him is based primarily on circumstantial evidence.  The evidence suggesting that Brown may have murdered Baksh is:  (a) his statement that he had bought drugs from Baksh three times that evening and wanted to reclaim a mountain bike from him; (b) witness accounts that Brown had Baksh’s pager number written on a napkin; (c) the napkin itself; and (d) a videotape of Brown entering his own apartment shortly after the murder.  No witness saw Brown kill or even threaten Baksh, and neither Brown nor any of his possessions was found to have Baksh’s blood on them.  With only this evidence, it is speculative that the Crown could prove its case against Brown beyond a reasonable doubt.

 

50                               The only other evidence that may implicate Brown is that of the jailhouse informant who allegedly overheard Brown confessing to another inmate.  To date, the In-Custody Informer Committee of the Attorney General’s office has not made a ruling as to whether the informant will be called to give evidence.  The Committee is waiting for a decision on the McClure application before it makes its final decision on the informant’s testimony.  This is an error.  The Crown should decide early whether the informant’s testimony will be introduced, and should not wait for a determination on the McClure application.  The informant’s testimony affects the strength of the Crown’s case, and is important to the trial judge’s assessment of whether the accused is able to raise a reasonable doubt.  It may be that the informant’s testimony will sufficiently strengthen the Crown’s case to obtain a guilty verdict from a jury.  However, I need not explain the pitfalls of relying on the testimony of a jailhouse informant who allegedly overheard a murder confession.  See R. v. Brooks, [2000] 1 S.C.R. 237, 2000 SCC 11.  A jury may well find such testimony suspect.  At any rate, as there has yet been no decision to call the informant to testify, it would be premature to conclude that Brown will be unable to raise a reasonable doubt without invading Benson’s solicitor-client privilege.

 


51                               The learned motions judge’s premature decision highlights the problems that may arise with respect to the timing of a McClure application.  Although the trial judge has discretion in every case as to when to hear the McClure application, it may be helpful to develop some guidance on this issue to avoid premature McClure applications and/or orders.

 

(2)  Timing of McClure Application

 

52                               In the usual case, it would be preferable to delay the McClure application until the end of the Crown’s case.  This will better permit the trial judge to assess the strength of the Crown’s case against the accused, and to determine whether the accused’s innocence is, in fact, at stake.  If the Crown has failed to prove its case beyond a reasonable doubt, then there will be no need to allow the McClure application and invade a third party’s solicitor-client privilege.  This will prevent the privilege from being unnecessarily violated.

 

53                               This decision will be easier for a judge sitting without a jury.  However, a judge sitting with a jury need not be concerned, as was Dambrot J., that his or her determination of whether the accused can raise a reasonable doubt will usurp the jury’s function.  The judge’s decision at this stage requires an assessment of the case at that point, not a determination of it.

 


54                               If the trial judge believes that the Crown has made a strong case in chief, but that the defence may be able to raise a reasonable doubt through its evidence, she may again decide to deny or postpone the McClure application.  However, there is nothing to prevent the defence from renewing its McClure application during its side of the case in the belief that it will not otherwise be able to raise a reasonable doubt.  Having heard a greater portion of the evidence, the trial judge will be better able to assess whether the accused’s innocence is at stake.  In any event, the McClure application is not a “one shot” affair.  Although defence counsel should not abuse the process, they may bring McClure applications at different times in the trial if they believe that the accused’s innocence is at stake.  I stress again that the trial judge should only allow the McClure application if and when she is of the view that the accused will be unable to raise a reasonable doubt without the evidence protected by the privilege.  If there is or may be some evidence upon which a reasonable jury, properly instructed, could acquit, the McClure application should be denied or postponed.

 

55                               In some cases, this may substantiate Dambrot J.’s fears about the “orderly conduct” of cases and about “undue delay” and “disruption” for jurors.  Nevertheless, this procedure is necessary if we are to carefully screen requests to invade solicitor-client privilege and ensure that they are only granted when absolutely necessary to establish at least a reasonable doubt about the guilt of the accused.  The test in McClure was not aimed at the orderly or efficient conduct of a trial, but rather at reaching an appropriate balance between the fundamental principles of solicitor-client privilege and the right to make full answer and defence.  These principles are of such importance to our legal system that trial efficiency may of necessity be sacrificed from time to time.

 

56                               Finally, due to the stringent nature of the test, and because the accused must establish each element on a balance of probabilities, successful McClure applications will be difficult and likely rare.  There is potential, in some instances, that an accused may fail on a McClure application and ultimately be convicted of the crime.  At a later time, when the accused is out of the system, i.e., exhausted his appeals, he may then learn of the contents of the third-party’s solicitor-client communication, and discover that it may have allowed him to raise a reasonable doubt.  This raises a concern that a failed McClure application may precede a wrongful conviction.

 


57                               Such wrongful convictions ought to be addressed through the traditional procedure of appealing to royal prerogative, as codified in s. 690  of the Criminal Code, R.S.C. 1985, c. C-46 .  They do not justify a relaxation of the McClure test.  The test has been designed to balance solicitor-client privilege against the right to make full answer and defence.  The invasion of solicitor-client privilege should be rare, and the burden of proof rests with the accused.  On occasion, the process may lead to a decision that, upon obtaining complete knowledge of the facts, appears to have disadvantaged the accused.  Nevertheless, it is for the accused to convince the court that the solicitor-client communications ought to be disclosed, and that burden cannot be altered simply because one gains the benefit of hindsight.

 

(3)  The Innocence at Stake Test

 

(a)   Stage #1:  Is there an evidentiary basis for the belief that a solicitor-client communication exists that could raise a reasonable doubt as to the accused’s guilt?

 

58                               This stage of the innocence at stake test requires the accused to provide some evidentiary basis for his belief that a solicitor-client communication exists that could raise a reasonable doubt as to his guilt.  In this case, Dambrot J. found that such an evidentiary basis existed.  Although he concluded that Donna Robertson’s testimony may not be admissible to prove the truth of Benson’s confession, Dambrot J. found that it was reliable insofar as it indicates that Benson did, in fact, make the statements to her.  In addition, Robertson had provided to police the business card on which Benson’s solicitors wrote their instructions purporting to invoke the right to silence.  Thus, I agree with Dambrot J. that there was a sufficient evidentiary basis to find that some solicitor-client communications exist.

 


59                               Further, I agree with Dambrot J.’s conclusion that the solicitor-client communications, if they exist, are capable of raising a reasonable doubt as to Brown’s guilt.  A confession by a third party, if sufficiently credible, is capable of raising a reasonable doubt.  Therefore, although Dambrot J. allowed the McClure application prematurely, and should not have proceeded past the threshold issue,  I believe that he applied the first stage of the innocence at stake test correctly.

 

(b)  Can a judge require amplification of the record between stages #1 and #2 of the innocence at stake test?

 

60                               Having ordered that the communications be produced to him for review, Dambrot J. expressed the view ([2001] O.J. No. 3409 (QL), at para. 2) that he would be unable to rule on stage #2 of the McClure application without hearing from counsel “who made the notations in the files, who could interpret or expand upon the communications in their files as necessary” to make the determination.  Although he eventually concluded that such amplification of the record would be unnecessary in this case, Dambrot J. made some general comments on the issue that require clarification in order to provide guidance in future cases.

 

61                               Dambrot J. reflected on the need to amplify the record based on the underlying scope and purpose of McClure applications (at paras. 4-5):

 


The underlying purpose of having witnesses amplify the record on the second stage of a McClure application would be to flesh out the details of the communication that was determined on stage one to be capable of raising a reasonable doubt as to the guilt of the accused beyond what has been recorded in the file.  Whether or not the calling of witnesses for this purpose is available depends on the scope of the procedure developed in McClure.  Is it a generally available procedure for determining whether or not solicitor-client privilege should yield to full answer and defence, or is it a procedure specifically designed for and limited to cases where information is sought from a solicitor-client file?  Insofar as McClure deals with the nature of solicitor-client privilege, and the circumstances in which it must yield to full answer and defence, it is obviously of general application.  But insofar as it creates a two-stage procedure with intermediate and final tests, I have concluded that the procedure is intended to deal exclusively with claims for production from a solicitor’s file.  To the extent that the calling of witnesses is permitted on stage two, those witnesses cannot be asked to divulge the details of privileged communications that do not appear in the file.  There is no basis for the court to order production to the accused of testimony concerning a privileged communication taken in a court compelled in camera hearing as part of a McClure application.  It follows that there is no basis for the court to conduct an investigation on behalf of the accused and compel the taking of such evidence in the first place.

 

. . . the accused has no entitlement to a discovery process at the commencement of trial directed towards the disclosure of the privileged communication any more than he or she is entitled to discovery of any other reluctant or uncooperative witness.  [Emphasis added.]

 

62                               I agree with Dambrot J.’s assessment that a McClure application should not be used as a discovery process to allow the defence or the trial judge to interrogate the solicitor.  However, I disagree with his view that the disclosure should be strictly limited to written communications contained in the file.  The decision in McClure speaks of solicitor-client communications, and there is no reason to make a distinction between written and oral communications.  Indeed, such a distinction would be arbitrary, in that it would unfairly restrict disclosure in cases where counsel take notes sparingly, make cryptic comments, or even write illegibly.  It may also have the unfortunate effect of discouraging counsel from making notes.

 


63                               Restricting the McClure application to written documents contained in the file would undermine the rationale for that application.  McClure was intended to provide a last resort to accused individuals whose innocence is at stake, and who otherwise face the possibility of wrongful conviction.  This threat of wrongful conviction is considered sufficient to require the infringement of solicitor-client privilege in cases where there is no other way to raise a reasonable doubt.  The rationale for breaching privilege with respect to written materials is equally applicable to oral communications.  An accused should not face the likelihood of wrongful conviction simply because a third party’s solicitor-client communications were not committed to paper.

 

64                               That being said, I am mindful of the danger that requiring counsel to testify about the privileged communications may render the McClure application a fishing expedition akin to a discovery process.  To avoid that, the amplification of the record should consist of an affidavit for the benefit of the trial judge.  Its use at this stage is to assist the trial judge, not to provide additional or better evidence to the accused.

 

65                               When a judge orders a lawyer to produce his or her files relating to certain client communications, the judge, for his eyes only at this stage, may also request the lawyer to supply an affidavit stating either that the information contained in the files is a complete record of the communications in question or containing all other information necessary to complete the record.  The judge will then be in a position to review the solicitor-client communications and to determine whether any part of the communications is likely to raise a reasonable doubt as to the guilt of the accused.

 

(c)   Stage #2:  Is there a communication in the file that is likely to raise a reasonable doubt as to the guilt of the accused?

 

66                               In light of the fact that Dambrot J.’s ruling on the McClure application was premature, it is not necessary to decide whether a communication exists in the solicitors’ files that is likely to raise a reasonable doubt as to Brown’s guilt.  Nevertheless, a general comment on Dambrot J.’s decision on this issue may prevent confusion in the future.

 


67                               When ordering particular items from the solicitors’ files to be disclosed, Dambrot J. noted that they included “brief notations that are meaningless on their own, but highly significant when viewed in the context of the other evidence led on the voir dire” (para. 7).  Counsel for Benson had argued that the items were not likely to raise a reasonable doubt, and placed the accused no further ahead than with the information that was already available to him.  To this submission, Dambrot J. responded (at para. 8):

 

While this argument certainly has some force, it ignores the significance of the source of the information, coming as it does from solicitors’ files, and the potential cumulative effect of evidence coming from multiple sources.  Viewed in this light, I consider the information to be far from marginal.

 

68                               This, with respect, is an erroneous interpretation of McClure.  The ability to infringe solicitor-client privilege must be limited to cases where the accused’s innocence is at stake, and where there is no other way to raise a reasonable doubt.  Its purpose is not, as Dambrot J. may appear to suggest, to strengthen the evidence the accused has already tendered by imbuing it with the high degree of credibility we assume there to be in a privileged communication.  He was in error in ordering production of the files on the basis that it would have a “cumulative effect”.

 

69                               Cumulative effect might be a basis for allowing access to solicitor-client communications where the other evidence would not, in the absence of those solicitor-client communications, be able to raise a reasonable doubt.  That is, cumulative effect should only be considered where, given their context, the solicitor-client communications help to make sense of the other evidence and thereby raise a reasonable doubt.  A court may not allow these privileged communications to be admitted to breathe credibility into other evidence; it may do so only in order to breathe meaning into otherwise sterile facts.

 


70                               Moreover, Dambrot J.’s comments are contrary to the principles of the threshold test set out in McClure, namely, that the information sought by the accused “is not available from any other source” (para. 48 (emphasis added)).  This requirement precludes any production order based on the accused’s enhanced ability to raise evidence from “multiple sources”.  In addition, the words “any other source” simply refer to a source of admissible evidence, and are not qualified by the reliability of the source or the quality of his or her evidence.

 

71                               The McClure application cannot be used to invade solicitor-client privilege simply because a solicitor’s file will provide evidence that is more likely to be believed  than the evidence already available to the accused.  The quality of the evidence is not a factor.  It will likely always be the case that a solicitor’s file will be seen as a more reliable and complete source of information, due to the nature of clients’ communication to their counsel.  However, it would be an unjustified affront to solicitor-client privilege to allow that frank and open manner, which is fostered by the confidential nature of the solicitor-client relationship, to become the basis for invading privilege.  The very essence of the privilege would then become its own undoing.

 

72                               To reiterate, the disclosure of communications under stage #2 of McClure can only be ordered where the solicitor’s file is the only way for the accused to raise a reasonable doubt as to his guilt.  It cannot be ordered to bolster or corroborate evidence that is already available to the accused.  Further, the trial judge should be satisfied that the communication sought to be entered is not otherwise inadmissible, such as being the expression of an opinion rather than a statement of fact.  Other examples come to mind, but it should be left to the trial judge in the appropriate case to deal with them.

 

(d)  Scope of Disclosure

 


73                               Once a trial judge has decided to allow a McClure application and order disclosure of certain privileged communications, the scope of that disclosure remains to be decided.  This issue was not discussed in McClure, as the application for disclosure in that case was denied.  However, it was argued extensively before us in the present appeal, and some guidance might help.  Ultimately, the manner and scope of disclosure will fall within the discretion of the trial judge.

 

74                               Two issues ought to be addressed regarding the scope of disclosure.  The first is to identify which communications ought to be disclosed.  As discussed previously in the context of amplifying the record, the trial judge should achieve a balance by allowing access to solicitor-client communications only to the extent necessary to allow the accused to raise a reasonable doubt.  The process should be similar to that outlined by L’Heureux-Dubé J. in R. v. O’Connor, [1995] 4 S.C.R. 411, at para. 163, for the production of medical and therapeutic records in the hands of third parties, particularly in sexual assault cases.

 

In that vein, where a court concludes that production is warranted, it should only be made in the manner and to the extent necessary to achieve that objective:  Dagenais, supra.  The court should not release classes of records, but rather should inspect each individual record for materiality.  Records that are to be produced should be vetted with a view to protecting the witness’s privacy, while nonetheless maintaining sufficient detail to make the contents meaningful to the reader.  The judge may, in certain cases, wish to hear submissions on whether the vetting of the records should be assisted by counsel for the complainant, for the guardian of the records, or for the Crown.  It will generally be appropriate, moreover, to review the records in camera, and to keep the records sealed and in the custody of the registrar. . . .  These procedures are part and parcel of the process of ensuring that privacy rights are minimally impaired while nonetheless furthering the objective of guaranteeing the accused full answer and defence and a fair trial.

 


75                               As can be seen, L’Heureux-Dubé J. was careful to limit production to only  those records necessary to provide the accused with a fair trial.  Her instructions were later echoed in ss. 278.1  to 278.91  of the Criminal Code , which were enacted in response to the decision in O’Connor.  Specifically, s. 278.7(3) allows a judge ordering production of a record to “impose conditions on the production to protect the interests of justice and, to the greatest extent possible, the privacy and equality interests of the complainant or witness”, to edit the record, and to sever certain personal information from the record.

 

76                               Similar instructions were provided in respect of the disclosure of solicitor-client communications in Smith v. Jones, [1999] 1 S.C.R. 455.  At para. 86, Cory J. explained the strict limitations on disclosure in cases involving the public safety exception to solicitor-client privilege:

 

The disclosure of the privileged communication should generally be limited as much as possible.  The judge setting aside the solicitor-client privilege should strive to strictly limit disclosure to those aspects of the report or document which indicate that there is an imminent risk of serious bodily harm or death to an identifiable person or group. . . . The requirement that the disclosure be limited must be emphasized.  For example, if a report contained references to criminal behaviour that did not have an imminent risk of serious bodily harm but disclosed, for example, the commission of crimes of fraud, counterfeiting or the sale of stolen goods, those references would necessarily be deleted.

 


77                               The same guiding principles must apply in the case of McClure orders.  The judge should order production of only those communications that are necessary to allow an accused, whose innocence is otherwise at stake, to raise a reasonable doubt as to his guilt.  A thoughtful and close examination of the communications is required to serve the public interest in avoiding wrongful conviction, while at the same time protecting solicitor-client privilege to the greatest extent possible.  For example, if the communications refer to other crimes committed by the privilege holder, those references ought to be omitted.  Further, care should be taken to ensure that third parties who are named in the privileged communications have their identities protected.  In short, any portions of the communications that are not necessary to raise a reasonable doubt as to the guilt of the accused should not be disclosed under the McClure application.

 

78                               The second issue to be determined regarding the scope of disclosure is who should be entitled to disclosure of the privileged communications.  The Attorney General of Ontario has submitted that any disclosure made to Brown ought also be made to the Crown.  This argument rests on the long-standing principle that the Crown’s role is not to gain a conviction at all costs, but to seek the truth and present all relevant evidence to the trier of fact.  The Attorney General of Ontario referred to  Boucher v. The Queen, [1955] S.C.R. 16, at pp. 23-24, per Rand J.:

 

It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime.  Counsel have a duty to see that all available legal proof of the facts is presented:  it should be done firmly and pressed to its legitimate strength but it must also be done fairly.  The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility.  It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.

 

79                               Accordingly, the Attorney General submits that the Crown’s interest in obtaining disclosure of the material is just as great as the accused’s.  The Crown must act in the public interest in determining whether to proceed to trial and whether there is sufficient evidence to secure a conviction.  The Crown has a public duty to avoid the wrongful conviction of accused individuals.  Therefore, the Attorney General submitted that any information disclosed to an accused on a McClure application should also be disclosed to the Crown.

 


80                               While the Crown has a significant public duty in criminal cases, particularly in its pursuit of truth, I am not persuaded that this merits the participation of or disclosure to the Crown pursuant to McClure applications.  The Crown’s duty to avoid wrongful conviction is outweighed by an individual’s right to speak freely with his or her lawyer secure in the knowledge of the confidential and privileged nature of those communications.  Further, it can be assumed that a person who may be wrongly accused will make at least as good use of potentially exculpatory information in the hopes of avoiding wrongful conviction as would the Crown.

 

81                               In order to balance the competing fundamental principles of solicitor-client privilege and the right to make full answer and defence, solicitor-client privilege should be infringed as minimally as necessary to allow the accused to raise a reasonable doubt.  It is important that the McClure application be used only to protect an accused whose innocence is at stake, and not to create a new method of discovery for the Crown.

 

82                               This limited scope of disclosure in McClure applications is consistent with general principles of disclosure in our criminal justice system.  Although the Crown in Canada is required to provide full disclosure to an accused, the accused has no reciprocal duty.  This one-way disclosure obligation was discussed by Sopinka J. in R. v. Stinchcombe, [1991] 3 S.C.R. 326, at p. 333:

 

I would add that the fruits of the investigation which are in the possession of counsel for the Crown are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done.  In contrast, the defence has no obligation to assist the prosecution and is entitled to assume a purely adversarial role toward the prosecution.  The absence of a duty to disclose can, therefore, be justified as being consistent with this role.

 


83                               The Crown will not suffer any prejudice if disclosure of the material on a McClure application is limited to the accused.  In an ordinary case, privileged communications between a third party and his or her solicitor may never come to the Crown’s attention, and will be of no assistance to the Crown in deciding whether to proceed to trial.  Moreover, even if the Crown became aware of a privileged communication, it could not invade privilege simply to obtain a fuller picture of all the evidence in the case, however admirable the Crown’s intentions may be.  If this were the case, solicitor-client privilege would be rendered practically meaningless.

 

84                               In my view, the principles that apply in an ordinary criminal prosecution are not altered by a successful McClure application.  The application provides for limited disclosure to an accused whose innocence is at stake, and who cannot raise a reasonable doubt in any other way.  The disclosure is allowed for a specific, exceptional purpose.  The Crown cannot “piggy back” onto this exceptional purpose to obtain disclosure of privileged material to which it would not have access in the ordinary case.  This would allow the Crown to invade solicitor-client privilege without meeting the rigorous requirements set out in McClure.

 

85                               To avoid this result, the material produced to the accused pursuant to a McClure application should be subject to the normal disclosure provisions of a criminal trial.  If the accused decides not to raise the privileged communications as evidence, then they will never come to the Crown’s attention, and the privilege holder will not be jeopardized.  Conversely, if the defence decides to rely on the privileged communications, whether at trial or during pre-trial negotiations, the Crown will gain access to those communications to the extent that the accused uses them.

 


86                               The Crown has raised the concern that the privileged communications might themselves be unreliable, and submitted that the public has an interest in ensuring that an accused’s acquittal is not based on unreliable communications.  While this is a legitimate concern, I think that it is adequately addressed by the procedures that have been suggested.  If the accused decides not to rely on the privileged communications, then there is no danger that they will be the basis for any subsequent acquittal.  Moreover, to the extent that the accused relies on the privileged communications, the Crown will have access to them.  If the Crown doubts the reliability of the privileged statements, then it may challenge them according to the ordinary rules of evidence.  This may include cross-examination of the solicitor at trial, if necessary, subject to the vigilance of the trial judge that invasion of the privilege is kept to its essentials.  Thus, the Crown’s concerns about “wrongful acquittals” can be adequately addressed without further incursions into solicitor-client privilege.

 

87                               In addition, the trial judge should use his or her discretion to protect the confidentiality of the disclosed communications vis-à-vis the participants in the trial and the public.

 

(e)   Immunity of the Privilege Holder

 

88                               The invasion of solicitor-client privilege exposes the privilege holder to potential future liability, particularly in cases, such as the present one, that may involve a confession to a serious crime.  Dambrot J. clearly accepted that some protections must be in place to prevent the disclosed material from being subsequently used as a “sword” against Benson.  He stated:

 


. . . I would, subject to hearing some very compelling arguments, attach conditions relating to the subject of sword and shield that you mentioned, because I think it would be grossly unfair for the Crown to get the windfall ability to use it as affirmative evidence, if it’s usable in that way, against Benson.  It would be, it seems to me, that would turn around the justification for making the order on its head.

 

Although Dambrot J. did not provide explicit conditions in the disclosure order, it was accepted by all parties before this Court, including the Crown, that should the communications be disclosed, Benson ought to receive immunity regarding the subsequent use of his privileged communications.

 

89                               As described, solicitor-client privilege is a fundamental tenet of our legal system.  Clients must be comfortable in making free and candid disclosure to their solicitors without fear that their communications will later be used against them.  This principle should in no way be diminished by the limited disclosure allowed in McClure.  The test established in that case provides for disclosure in the exceptional circumstance that it is necessary to prevent a wrongful conviction.  The disclosure must be limited to that purpose only.  It should not be used to incriminate the privilege holder, who would have been protected but for the operation of McClure.

 

90                               The immunity of the privilege holder in the case of a McClure application is not entirely analogous to the other types of immunity typically implicated in criminal cases.  The privilege holder is not an accused, so he cannot claim the right not to testify against himself under s. 11 (c) of the Charter .  Indeed, the privilege holder (Benson) may not even be a witness, so he cannot claim the privilege against self-incrimination afforded by s. 13  of the Charter  and by s. 5(2)  of the Canada Evidence Act, R.S.C. 1985, c. C-5 .  Therefore, the immunity of the privilege holder falls to be addressed by the broader principles of fundamental justice inherent in s. 7  of the Charter .


 

91                               Section 7 provides that “[e]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”  In Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425, La Forest J. found that s. 7  “may in certain contexts at least provide residual protection to the interests the right is designed to protect that goes beyond the specific protection provided by ss. 11 (c) and 13 ” (p. 537).  Other members of the Court also described s. 7  as providing “residual protection” against self-incrimination in situations not already governed by other sections of the Charter .

 

92                               In R. v. P. (M.B.), [1994] 1 S.C.R. 555, Lamer C.J. confirmed that “[t]he broad protection afforded to accused persons is perhaps best described in terms of the overarching principle against self-incrimination, which is firmly rooted in the common law and is a fundamental principle of justice under s. 7  of the Canadian Charter of Rights and Freedoms ” (p. 577).  Next, in R. v. Jones, [1994] 2 S.C.R. 229, Lamer C.J. described the principle against self-incrimination in the following way, at p. 249:

 

Any state action that coerces an individual to furnish evidence against him- or herself in a proceeding in which the individual and the state are adversaries violates the principle against self-incrimination.  Coercion, it should be noted, means the denial of free and informed consent.

 

The Chief Justice also noted that the rationale for the principle was rooted in two other principles:  “(1) protection against unreliable confessions; and (2) protection against the abuse of power by the state” (p. 250).  While Lamer C.J. was in dissent in Jones, the above principles have been cited by this Court in subsequent cases, infra, and ought to be taken as authoritative.


93                               Lamer C.J.’s definition and rationale were cited by La Forest J. in R. v. Fitzpatrick, [1995] 4 S.C.R. 154, which involved a fisherman who was charged for exceeding his quota.  La Forest J. found that the principle against self-incrimination was not engaged by the requirement that the fisherman produce fishing logs and a hail report describing his estimated catch.  La Forest J. was particularly persuaded by the lack of an adversarial or inquisitorial relationship, and by the “muted” degree of coercion involved (para. 37).  Similarly, La Forest J. found that the mandatory reporting did not threaten either rationale for the principle against self-incrimination, in that it encouraged neither  unreliable confessions nor abuses of power by the state.  The same reasoning process was followed by Iacobucci J. in R. v. White, [1999] 2 S.C.R. 417, where he concluded that mandatory reporting of motor vehicle accidents did bring the principle against self-incrimination into play.

 

94                                Applying these criteria to the present case, I conclude that privilege holders whose solicitor-client communications are disclosed pursuant to a McClure application must be protected by the residual principle against self-incrimination contained in s. 7  of the Charter .  Although the privilege holder is not necessarily engaged in adversarial proceedings at the time he makes the communication with his solicitor, he risks being involved in such proceedings once those communications are disclosed.  Moreover, while the communication to the solicitor is not “coerced” by the state in the same way as a statutory reporting obligation or as interrogation by police, it is coerced inasmuch as it is ordered disclosed by a court of law, and the court order overrides the solicitor-client privilege that would otherwise apply.  The residual protection of s. 7  would indeed be hollow if it allowed an individual to be incriminated by statements that were disclosed as an exception to his solicitor-client privilege.

 


95                               What, then, is the scope of the residual protection provided to individuals whose privilege is invaded by way of a McClure application?  This Court has noted that an interpretation of the principle against self-incrimination contained in s. 7  of the Charter  is “contextually-sensitive”, because it “demands different things at different times”; see White, supra, at para. 45.  Thus, while prior jurisprudence will be instructive to the present appeal, the Court maintains the ability to tailor the scope of the principle in accordance with the particular facts of the case.

 

96                               In the case of communications that are disclosed pursuant to McClure applications, it is critical to consider the fundamental importance of solicitor-client privilege to our system of justice.  That privilege can only be invaded in extremely exceptional circumstances, where another individual’s innocence is at stake.  It is important that the rights of the privilege holder be intruded upon as minimally as possible.  Consequently, in reviewing how the principle against self-incrimination has been interpreted in previous cases, I believe that the protection extended to the privilege holder must be among the strongest available in law.

  

97                               In R. v. S. (R.J.), [1995] 1 S.C.R. 451, the Court was asked to determine whether an accused who was charged and tried separately could be a compellable witness in the trial of a second accused charged in relation to the same offence.  Due to the separate trials, the first accused had simply the status of “witness” at the trial of the second accused, and was subject to the ordinary rules regarding the compellability of witnesses.  The Court found that, while the first accused was a properly compellable witness, s. 13  of the Charter  operated to provide “use” immunity with respect to the evidence he gave.  He was also protected by “derivative use” immunity under s. 7  of the Charter  for evidence that resulted, in fact, from the compelled disclosure.

 


98                               Similarly, in British Columbia Securities Commission v. Branch, [1995] 2 S.C.R. 3, this Court had to determine the appropriate scope of immunity for officers of a corporation who were compelled to testify in a case against the corporation on the subject of questionable expenditures by the corporation.  The officers argued that this compelled testimony violated the s. 7 principle against self-incrimination.  The Court disagreed, and found that the officers were properly compelled to testify.  However, ss. 13 and 7 of the Charter  required that the officers be granted “use” and “derivative use” immunity, respectively, regarding their compelled testimony.

 

99                               In my view, the privilege holder in the case of McClure applications must be given at least as much protection as described above.  The rationale for protecting a witness, even one who has been charged in connection with the same crime, is equally applicable to evidence that is ordered disclosed pursuant to a McClure application.  A third party who makes an incriminating statement to his solicitor does so with the confidence that the statement will not subsequently be used against him.  If that statement is later ordered disclosed due to a McClure application, the third party will, indirectly, have been compelled to provide evidence against himself.  Although this compulsion does not have the same “adversarial” nature as in situations where an accused is directly required by the police or prosecution to incriminate himself, a judge’s order in response to a McClure application involves a comparable amount of state “coercion”.  Therefore, the privilege holder should be subject to the same Charter  protections that would apply had he been compelled to testify as a witness, namely, use immunity and derivative use immunity.

 


100                           This means that the privilege holder’s communications and any evidence derived therefrom cannot be used in a subsequent case against the privilege holder.  However, I disagree with the submission of the intervener the Federation of Law Societies of Canada that any information found in a subsequent investigation should be classified as derivative evidence.  The intervener submitted that, as the case against Benson may never be re-opened but for the disclosure of his privileged communications, any evidence discovered subsequent to that disclosure is necessarily derivative.  This suggestion is overly broad, and has the practical effect of extending transactional immunity, discussed and rejected infra, to the privilege holder.  Instead, in order to be classified as derivative, the evidence must have a more tangible connection to the self-incriminating evidence, as reviewed by Cory J. in R. v. Stillman, [1997] 1 S.C.R. 607, at paras. 99-102.

 

101                           For example in R. v. Burlingham, [1995] 2 S.C.R. 206, the police violated the accused’s right to counsel and manipulated him into giving a full confession to a murder, including a description of where the murder weapon could be found.  This Court found that the subsequent seizure of the weapon was derived from the improperly conscripted statement, and the evidence was excluded under s. 24(2)  of the Charter .  There was a clear and tangible connection between the self-incriminating statement and the discovery of the murder weapon.  In the case of McClure applications, derivative use immunity covers evidence derived from the communications, not from the fact that they were disclosed.

 

102                           Use and derivative use immunity should prohibit the Crown both from using the communications as direct evidence against the privilege holder and from using the communications to impeach the privilege holder if and when he is himself an accused.  The necessity for this latter protection was described by Sopinka J. at para. 34 of R. v. Calder, [1996] 1 S.C.R. 660:

 


The effect on the repute of the administration of justice is to be assessed by reference to the standard of the reasonable, well-informed citizen who represents community values.  The effect of destroying the credibility of an accused who takes the stand in his or her defence using evidence obtained from the mouth of the accused in breach of his or her Charter  rights will usually have the same effect as use of the same evidence when adduced by the Crown in its case in chief for the purpose of incrimination.

 

In my view, the case for protection from impeachment is especially strong in cases arising out of a McClure application.  Our justice system cannot endorse the impeachment of an accused by means of communications which would otherwise have been completely protected by solicitor-client privilege.

 

103                           However, that does not mean that the disclosure of privileged information under a McClure application should give rise to so-called “transactional” immunity (i.e., immunity from any future criminal prosecution for the crimes which are the subject of the solicitor-client communications).  Such an extension of immunity would provide protection to the privilege holder that he would never have had, but for the accused’s McClure application.  While I am mindful that the invasion of solicitor-client privilege should never be used to incriminate the privilege holder, I am in agreement with the respondent the Attorney General of Ontario that the clear need for use and derivative use immunity does not support absolute immunity for the offence in question.  For example, if the Crown is able to uncover evidence entirely independent and not derived from the solicitor-client communications, it should be permitted to raise that evidence against the privilege holder in a subsequent prosecution.  To hold otherwise would be to give effect to the “immunity baths” that plagued the American experience with transactional immunity under the Fifth Amendment; see M. Berger, Taking the Fifth:  The Supreme Court and the Privilege Against Self-Incrimination (1980), at p. 70.  More importantly, it would unnecessarily compromise the public interest in bringing criminals to justice.

 


104                           Further, there is a possible, if slight, potential that the extension of transactional immunity in such cases would allow co-conspirators to manipulate the justice system.  If one of them were charged, the other could confess to counsel.  The accused could then make a McClure application and use the privileged confession to raise a reasonable doubt about his own guilt.  At the same time, the privilege-holding co-conspirator would become immune from any future prosecution for that offence.  In my view, the extension of immunity to privilege holders should not go so far as to frustrate the Crown’s ability to prosecute the offence.

 

VII.  Procedural Remarks

 

105                           This appeal, like McClure before it, comes directly to the Supreme Court of Canada without the benefit of its being considered by the Ontario Court of Appeal.

 

106                           In this respect, this appeal follows the path of Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; A. (L.L.) v. B. (A.), [1995] 4 S.C.R. 536; R. v. Adams, [1995] 4 S.C.R. 707; and R. v. Mentuck, [2001] 3 S.C.R. 442, 2001 SCC 76.

 

107                           Sections 674  and 675  of the Criminal Code  provide the procedures for appeals to the intermediate courts of appeal of the provinces, but are limited so as to exclude the ability of those courts to consider appeals from interlocutory orders.

 

108                           The third party appellant, in this case Benson, could not appeal the interlocutory order for production of his privileged communications, whether or not a party to the criminal trial.  Instead, he was required to bring an application directly to this Court under s. 40(1)  of the Supreme Court Act, R.S.C. 1985, c. S-26 , for leave to appeal the final order requiring production of his solicitor-client communications.


 

109                           The administration of justice would greatly benefit if the jurisdiction of the provincial appellate courts were broadened to permit parties the easier access to those courts.  The Supreme Court of Canada would also have the fuller record, and valuable input, of the provincial courts of appeal if further appeals to this Court were taken.

 

110                           This anomaly in the Criminal Code  is an unnecessary encumbrance and its serious defects have been repeatedly noted by this Court with the accompanying request for legislative amendment by Parliament.  That request is made here once again, in the strongest possible terms.

 

VIII.  Disposition

 

111                           The appeal is allowed and the order for production by Dambrot J. is set aside.

 

The reasons of L’Heureux-Dubé and Arbour JJ. were delivered by

 

112                           Arbour J. -- Solicitor-client privilege is fundamental to the Canadian justice system and is one of our most entrenched exclusionary rules of evidence.  As R. v. McClure, [2001] 1 S.C.R. 445, 2001 SCC 14, makes clear, the circumstances in which solicitor-client privilege will yield are rare and should only be as a last resort when the innocence of an accused is at stake.

 


113                           Although I agree entirely with my colleague Justice Major’s analysis and disposition of this appeal, I wish to elaborate on an issue that will be important in future McClure applications.  The issue is not squarely raised in this case and I would normally refrain from dealing with it in any detail.  However, the deficiencies in access to appellate review that my colleague has exposed present an exceptional case.  I believe that additional guidance must come from this Court when trial judges are required to address new and difficult issues without the benefit of the guidance and supervision of provincial appellate courts.  In the same way, it is not realistic to expect that this Court could and should routinely exercise the functions of an intermediate appeal court.  For those reasons, I think we must anticipate one of the inevitable difficulties that trial judges are likely to experience in this field, as clearly revealed on this record.

 

114                           Central to Dambrot J.’s ruling in this case was his obvious concern that the evidence of Robertson regarding Benson’s confession may not be admissible.  He said ([2001] O.J. No. 3408 (QL), at para. 7):

 

Of course, there is much to be said in the circumstances here for a relaxation of the ordinary rules respecting the use of the prior statements, or the admission of them for their truth on the basis of necessity and reliability.  Once again, however, the availability and usefulness of these possibilities is undermined by the attack that can be made on the accuracy and reliability of Robertson’s account, and the reliability of the confession itself.  I do not propose to deal further with the question of the use that can be made of Benson’s statements to Robertson, but simply wish to underscore the difficulties faced by the defence.

 

115                           In contemplating the admissibility of Donna Robertson’s testimony as another source of information regarding Benson’s confession, my colleague stresses that inadmissibility should not be a foregone conclusion (para. 43).  He suggests that her testimony may potentially be admissible under an exception to the hearsay rule.  In this regard he cites Martin J.A. for the Ontario Court of Appeal in R. v. Williams (1985), 50 O.R. (2d) 321, for the suggestion that a court has the discretion to relax strict rules of evidence in favour of the accused where it is necessary to prevent a miscarriage of justice.  It is this issue that I wish to elaborate upon.

 


116                           The idea that courts maintain the discretion to relax the rules of evidence when an accused’s innocence is at stake has its roots in Williams.  In that case, Martin J.A. held that an accused’s right to make full answer and defence must comply with established rules respecting the admission of evidence (Williams, at p. 337; see also Dersch v. Canada (Attorney General), [1990] 2 S.C.R. 1505, at p. 1515).  Martin J.A. did, however, go on to state that the court had a residual discretion to relax strict rules of evidence in favour of the accused when necessary to prevent a miscarriage of justice (p. 343).  Support for this proposition, as expressed in Williams, is also found in the Ontario Court of Appeal decisions of R. v. Rowbotham (1988), 41 C.C.C. (3d) 1, at p. 57, and R. v. Finta (1992), 73 C.C.C. (3d) 65, at pp. 201-2, aff’d [1994] 1 S.C.R. 701, as well as in this Court’s decision in Finta, at p. 854. 

 

117                           Williams was written prior to this Court’s decision in R. v. Khan, [1990] 2 S.C.R. 531, in which the principled approach to hearsay was established, focussing on necessity and indicia of reliability as the criteria for admitting hearsay evidence.  The rule in Khan does not address the need expressed in Williams for a relaxation of rules of exclusion when innocence is at stake.  Logic, principle and policy dictate that if one of the most stringent exclusionary rules, the solicitor-client privilege, is to yield to concerns about convicting an innocent person, other exclusionary rules, such as the hearsay rule, should yield first.  In the context of a McClure application, the interests of justice will be better served by relaxing other exclusionary rules when innocence is at stake so as to avoid having to infringe on privileged communications between a lawyer and his client.

 


118                           The evidence of Donna Robertson regarding Benson’s confession will only be of assistance to the accused in this case if it is admissible for the truth of its content, whether it is tendered as a prior inconsistent statement if Benson testifies and denies the allegation, or as a self-standing piece of exculpatory evidence.  When the alternative is to infringe the solicitor-client privilege, the Khan line of authority, as well as R. v. B. (K.G.), [1993] 1 S.C.R. 740, should be distinguished to recognize the imperatives of putting before the jury information that, if believed, would entirely exonerate the accused who otherwise is at risk of facing an unjustified conviction.

 

119                           The same concerns that animate the rule in McClure, and that have led to the creation of an exception to one of our most stringent exclusionary rules, should also inform the application of other, less critical rules of evidence by which information is withheld from the jury.  In the case of hearsay, threshold concerns about necessity and reliability, which reflect issues of fairness to the opponent in the adversary system, should be weighed against the dangers of convicting an innocent person and the undesirability of intruding into confidences made to a solicitor.

 

120                           I would therefore suggest that in the course of McClure applications, trial judges should examine all alternatives to infringing the privilege in the same spirit and with the same flexibility as the policy considerations that led to the creation of the McClure rule in the first place.

 

Appeal allowed.

 

Solicitor for the appellant:  Richard G. Litkowski, Toronto.

 

Solicitors for the respondent Jason D. Brown:  Rosen, Wasser, Toronto.

 

Solicitors for the respondent Her Majesty the Queen:  The Ministry of the Attorney General, Toronto.

 


Solicitors for the intervener the Federation of Law Societies of Canada:  Ruby & Edwardh, Toronto.

 

Solicitor for the interveners Todd Ducharme and Peter Copeland:  Anil K. Kapoor, Toronto.

 

Solicitors for the intervener the Criminal Lawyers’ Association (Ontario):  Skurka & Pringle, Toronto.

 

 

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