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Evidence - Privilege - Solicitor-Client - 'Innocence at Stake' Exception (McClure applications). R. v. Fox
In R. v. Fox (SCC, 2026) the Supreme Court of Canada dismissed a criminal appeal, this brought against a dismissal of "the Crown’s appeal from Ms. Fox’s acquittal" from "attempting to obstruct or defeat justice contrary to s. 139(2) [SS: 'Obstructing justice'] of the Criminal Code".
Here the court extensively considers the 'innocence at stake' exception to solicitor-client privilege (McClure applications):(4) The Limited Exceptions to Solicitor-Client Privilege
[41] Although solicitor-client privilege is “near-absolute”, it is subject to limited common law exceptions based on competing societal values. Those exceptions apply only in certain “clearly defined circumstances” and do not involve a balancing of interests on a case-by-case basis (McClure, at para. 35; see also Dodek, ch. 8; Hubbard and Doherty, ch. 13; Vauclair, Desjardins and Lachance, at paras. 43.17-43.26). The exceptions include: (a) a “public safety” exception, when there are real concerns that an identifiable individual or group is in imminent danger of death or serious bodily harm (Smith, at para. 85; Chambre des notaires du Québec, at para. 83; Dodek, at §§8.6-8.20; Hubbard and Doherty, at § 11:54; Vauclair, Desjardins and Lachance, at para. 43.26); (b) a “wills” exception, to determine the true intention of a deceased testator or settlor relating to a will or trust (Geffen v. Goodman Estate, 1991 CanLII 69 (SCC), [1991] 2 S.C.R. 353, at p. 387; Dodek, at §§8.130-8.131; Hubbard and Doherty, at § 11:59); and (c) an “innocence at stake” exception, when “core issues going to the guilt of the accused are involved and there is a genuine risk of a wrongful conviction” (McClure, at para. 47; Brown, at paras. 3-4; Dodek, at §§8.38-8.48; Hubbard and Doherty, at §§ 11:49-11:50; Vauclair, Desjardins and Lachance, at para. 43.19). The Court has also mentioned the possibility of recognizing a national security exception (Smith, at para. 53; Dodek, at §§8.53-8.62).
(5) The Innocence at Stake Exception
[42] In McClure, this Court adapted the innocence at stake exception to informer privilege recognized in R. v. Leipert, 1997 CanLII 367 (SCC), [1997] 1 S.C.R. 281, to recognize an innocence at stake exception to a third party’s solicitor-client privilege. The following year, in Brown, the Court clarified the McClure test and reaffirmed that both solicitor-client privilege and the right to make full answer and defence to a criminal charge are principles of fundamental justice under s. 7 of the Charter. When these principles clash, solicitor-client privilege may, in rare circumstances, be “subordinated” and “required to yield” to permit an accused to make full answer and defence (McClure, at para. 4; Brown, at para. 1). As this Court explained, “[o]ur system will not tolerate conviction of the innocent” (McClure, at para. 40). “Canadians’ abhorrence at the possibility of a faulty conviction tips the balance slightly in favour of innocence at stake over solicitor-client privilege” (Brown, at para. 2).
[43] The McClure test imposes a “stringent” threshold and is available only as a “last resort” when the accused’s innocence is at stake; the test is met in “rare circumstances” (paras. 4-5; Brown, at paras. 3, 27 and 63). The McClure test includes a threshold question and a two-stage innocence at stake test (paras. 46-61), which was summarized in Brown, at para. 4, 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. [44] In McClure, a former teacher charged with sexually assaulting former students applied for access to the civil litigation file of one of the students who had sued him. The accused sought access to the file to determine the nature of the allegations the complainant had originally made to his solicitor and to assess his motive to fabricate or exaggerate the alleged sexual assault. This Court dismissed the application, holding that it failed at the first stage of the McClure test: the accused had not shown that the litigation file could raise a reasonable doubt as to his guilt. The Court also noted that the accused could have raised the complainant’s motive to fabricate by other means, such as by noting that the complainant had commenced a civil action.
[45] In Brown, an accused charged with murder applied for production of another individual’s alleged confession of the murder to his lawyer. The other individual had allegedly told his girlfriend that he had confessed to his lawyer, and she then told the police. This Court dismissed the McClure application on the basis that it was premature. Before contemplating whether to infringe solicitor-client privilege, it was first necessary to determine whether the individual had waived his solicitor-client privilege by telling his girlfriend about his confession to his lawyer. The accused had also not shown that the privileged information was unavailable from another source (such as from the girlfriend’s statement to the police) or necessary for the accused to raise a reasonable doubt. As a result, the accused had not shown that his innocence was at stake.
[46] I next address [SS: at paras 47-82] why, in my view, a lawyer can bring a McClure application to access their client’s privileged communications for use in their own defence.
B. Can a Lawyer Invoke the Innocence at Stake Exception to Solicitor-Client Privilege to Seek Access to Their Client’s Privileged Communications for Use in Their Own Defence?
[47] The Crown argues that the majority of the Court of Appeal erred in law by holding that Ms. Fox could not invoke the innocence at stake exception to seek access to her client’s privileged communications for use in her own defence. In the Crown’s view, a lawyer can bring a McClure application in such a case, and the process for doing so can be adapted to account for a lawyer’s ethical duties and duty of loyalty to their client. The Crown also argues that s. 189(6) of the Criminal Code does not preclude Ms. Fox from invoking the innocence at stake exception, because this provision merely preserves solicitor-client privilege in the context of an interception, without eliminating the common law exceptions such as innocence at stake.
[48] By contrast, Ms. Fox contends that the majority of the Court of Appeal correctly found that her right to a fair trial was infringed. In her view, a lawyer cannot bring a McClure application to seek access to their client’s privileged communications without breaching their ethical duty of confidentiality and duty of loyalty to their client. She also claims that s. 189(6) of the Criminal Code prohibits her from obtaining access to her client’s privileged communications without her client’s consent. This leaves her unable to defend herself against the charge and deprives her of the right to a fair trial, contrary to ss. 7 and 11(d) of the Charter. As a result, Ms. Fox submits that the only appropriate and just remedy to protect her right to a fair trial was to exclude the non-privileged part of the call from evidence under s. 24(1) of the Charter.
[49] I agree with the Crown. In my view, a lawyer can invoke the innocence at stake exception to solicitor-client privilege when they seek to obtain access to their client’s privileged communications for use in their own defence. As elaborated below, I reach this conclusion for several reasons. First, Ms. Fox’s position rests on an absolutist conception of solicitor-client privilege, the ethical duty of confidentiality, and the duty of loyalty that has been consistently rejected by courts and legal regulators. Although a lawyer’s ethical and legal duties are high, they are not absolute. Second, a lawyer’s ethical and legal duties cannot override their constitutional right to make full answer and defence to a criminal charge, a constitutional right held by any accused person. Third, adopting an absolutist conception of a lawyer’s ethical and legal duties would inevitably mean treating lawyers unequally in the criminal justice system. Fourth, s. 189(6) of the Criminal Code does not prevent a lawyer from invoking the innocence at stake exception to solicitor-client privilege. Finally, the McClure test can be readily adapted to such a situation.
(1) Courts and Legal Regulators Have Rejected an Absolutist Conception of Solicitor-Client Privilege and a Lawyer’s Ethical and Legal Duties
[50] Courts and legal regulators have consistently rejected an absolutist approach to solicitor-client privilege and a lawyer’s ethical and legal duties to their client.
[51] For example, this Court has recognized that although a client’s right to solicitor-client privilege is “near-absolute”, it is not absolute, and it can yield to important countervailing societal interests, including public safety (Smith) and the right of the innocent not to be convicted of a criminal offence (McClure; Brown). Even before McClure, courts in Canada recognized narrow circumstances where a lawyer could rely on their own client’s privileged communications to defend themselves against a criminal charge if their innocence was at stake. A leading case involved Kenneth Murray, counsel for the infamous murderer Paul Bernardo, who was allowed to rely on his privileged communications with Mr. Bernardo to defend against a charge of obstruction of justice for concealing videotape evidence of Mr. Bernardo’s crimes (R. v. Murray (2000), 2000 CanLII 22372 (ON SC), 48 O.R. (3d) 437 (S.C.J.), at paras. 17-18).
[52] Legal regulators have also consistently rejected an absolutist view of a lawyer’s ethical duty of confidentiality. For example, the Law Society of Saskatchewan’s Code of Professional Conduct for Lawyers stipulates that “[a] lawyer at all times must hold in strict confidence all information concerning the business and affairs of a client acquired in the course of the professional relationship and must not divulge any such information” (r. 3.3-1). This rule is subject to exceptions, including “[i]f it is alleged that a lawyer or the lawyer’s associates or employees . . . have committed a criminal offence involving a client’s affairs”; in such a case, “the lawyer may disclose confidential information in order to defend against the allegations, but must not disclose more information than is required” (r. 3.3-4).
[53] Legal regulators across the country have similarly recognized that a lawyer’s duty of confidentiality to their client is not absolute and may yield under certain limited circumstances to allow the lawyer to defend themselves against a criminal charge involving a client’s affairs (Law Society of Alberta, Code of Conduct, r. 3.3-4; Law Society of British Columbia, Code of Professional Conduct for British Columbia, r. 3.3-4; Law Society of Manitoba, Code of Professional Conduct, r. 3.3-4; Law Society of Newfoundland and Labrador, Code of Professional Conduct, r. 3.3-4; Law Society of Ontario, Rules of Professional Conduct, r. 3.3-4; Law Society of Prince Edward Island, Code of Professional Conduct, r. 3.3-4; Law Society of New Brunswick, Code of Professional Conduct, r. 3.3-4; Nova Scotia Barristers’ Society, Code of Professional Conduct, r. 3.3-4; Quebec’s Code of Professional Conduct of Lawyers, CQLR, c. B-1, r. 3.1, s. 65; Law Society of the Northwest Territories, Code of Professional Conduct, r. 3.3-4; Law Society of Nunavut, Code of Professional Conduct, r. 3.3-4; Law Society of Yukon, Code of Conduct, r. 3.3-4; see also Federation of Law Societies of Canada, Model Code of Professional Conduct, April 2024 (online), r. 3.3-4; Dodek, at §§8.100-8.109; D. Layton and M. Proulx, Ethics and Criminal Law (2nd ed. 2015), at pp. 217-22; A. Woolley and A. Salyzyn, Understanding Lawyers’ Ethics in Canada (3rd ed. 2023), at pp. 272-75; G. MacKenzie, Lawyers & Ethics: Professional Responsibility and Discipline (loose-leaf), at § 3:7; M. Mercer, “Professional Conduct Rules and Confidential Information versus Solicitor-Client Privilege: Lawyers’ Disputes and the Use of Client Information” (2013), 92 Can. Bar Rev. 595).
[54] Although these rules of professional conduct provide exceptions to the ethical duty of confidentiality, they do not expressly provide exceptions to solicitor-client privilege and, in any event, they do not bind the courts (Canadian National Railway Co. v. McKercher LLP, 2013 SCC 39, [2013] 2 S.C.R. 649, at paras. 15-16; R. v. Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331, at paras. 35-38; Mercer, at pp. 597 and 608-9). Even so, this Court has accepted that “an expression of a professional standard in a code of ethics relating to a matter before the court should be considered an important statement of public policy” because it expresses “the collective views of the profession as to the appropriate standards to which the profession should adhere” (MacDonald Estate v. Martin, 1990 CanLII 32 (SCC), [1990] 3 S.C.R. 1235, at pp. 1244 and 1246; McKercher, at para. 16; Cunningham, at para. 38). It is therefore relevant that legal regulators view a lawyer’s ethical duty of confidentiality as being high but not absolute, and as allowing a lawyer to defend themselves against a criminal charge involving a client’s affairs.
[55] It also bears noting that the narrow, recognized exceptions to solicitor-client privilege do not infringe a lawyer’s duty of loyalty to their client. The exceptions define the contours of a lawyer’s duty of loyalty without infringing it. As this Court has recognized, a lawyer’s duty of loyalty, which is intertwined with the fiduciary nature of the lawyer-client relationship, “is essential to the integrity of the administration of justice and it is of high public importance that public confidence in that integrity be maintained” (R. v. Neil, 2002 SCC 70, [2002] 3 S.C.R. 631, at para. 12; see also Strother v. 3464920 Canada Inc., 2007 SCC 24, [2007] 2 S.C.R. 177, at paras. 34-35; McKercher, at paras. 19-47). At the same time, any recognized exception to solicitor-client privilege implicitly accepts that the duty of loyalty, while high, is not absolute. For example, a lawyer who relies on the public safety exception to solicitor-client privilege to prevent a clear, serious, and imminent danger of death or serious bodily harm to an identifiable individual or group cannot be said to infringe their duty of loyalty to their client. The duty of loyalty simply does not extend that far.
[56] The same can be said of the innocence at stake exception to solicitor-client privilege. As the dissenting judge of the Court of Appeal correctly stated, “a lawyer is not required to go to jail for their client” (para. 177). The duty of loyalty also does not extend that far.
(2) Solicitor-Client Privilege and a Lawyer’s Ethical and Legal Duties Cannot Override a Lawyer’s Constitutional Right to Make Full Answer and Defence to a Criminal Charge Against Them
[57] By rejecting an absolutist conception of solicitor-client privilege and a lawyer’s ethical and legal duties, courts and legal regulators have recognized that a lawyer’s duties cannot override their constitutional right to make full answer and defence to a criminal charge, a constitutional right held by any accused person. As stated in McClure, “[r]ules and privileges will yield to the Charter guarantee of a fair trial where they stand in the way of an innocent person establishing [their] innocence” (para. 40). This remains so when the innocent person is a lawyer. As reiterated in Brown, “Canadians’ abhorrence at the possibility of a faulty conviction tips the balance slightly in favour of innocence at stake over solicitor-client privilege” (para. 2). Similarly, a lawyer’s high ethical and legal obligations must yield to the extent necessary to safeguard their constitutional right to a fair trial.
(3) An Absolutist Conception of Solicitor-Client Privilege and a Lawyer’s Ethical and Legal Duties Would Treat Lawyers More Favourably in the Justice System
[58] An absolutist conception of solicitor-client privilege and a lawyer’s ethical and legal duties would also have the unacceptable consequence of treating lawyers charged with crime more favourably than other criminal defendants. Exempting lawyers from the stringent innocence at stake test in McClure because of their supposed absolute obligations of confidentiality and loyalty would mean that lawyers could establish a breach of their right to a fair trial whenever they are denied access to privileged communications, even if those communications might not raise a reasonable doubt as to their guilt.
[59] That happened here. The trial judge and the majority of the Court of Appeal declined to apply the innocence at stake test. They excluded the non-privileged part of the call, without examining the privileged part and without being satisfied that the privileged communications would likely raise a reasonable doubt as to Ms. Fox’s guilt. In their view, the mere existence of an inaccessible privileged communication justified granting a remedy under s. 24(1) of the Charter. As aptly noted by the intervener Attorney General of Ontario, this approach perversely “provides justice system participants with a more favourable remedy (exclusion of evidence under s. 24(1) of the Charter as opposed to disclosure and the ability to use privileged communications) based on a lower evidentiary offering” (I.F., at para. 9). I also share the Attorney General of Ontario’s view that “justice system participants should not be permitted to prove less to get more than other criminal accused persons. Recognizing a more lenient test for accused lawyers would undermine public confidence in the administration of justice” (para. 10).
[60] In similar circumstances, this Court has directed that when justice system participants seek to rely on privileged communications in their own defence, they must abide by the same rules as others. In R. v. Brassington, 2018 SCC 37, [2018] 2 S.C.R. 616, this Court held that police officers charged with criminal offences must meet the usual stringent innocence at stake test to set aside informer privilege. The Court added that police officers cannot disclose information protected by informer privilege even to their defence lawyers unless they show that their innocence is at stake. Police officers accused of crimes are “entitled to expect that they will be treated no less fairly than others who are accused and given the full protection of the law. What they are not entitled to expect is that they will be treated better” (para. 52).
[61] The same approach applies to lawyers accused of crimes. As Professor Dodek has stated eloquently, “[l]awyers should not have to be martyrs but neither should they be treated as the prodigal sons or daughters of the justice system” (§8.104). An absolutist conception of solicitor-client privilege and a lawyer’s ethical and legal duties to their client should therefore be rejected to ensure that lawyers are treated equally and not preferentially in the criminal justice system.
(4) Section 189(6) [SS: 'Privileged evidence'] of the Criminal Code Does Not Prevent a Lawyer From Invoking the Innocence at Stake Exception
[62] Section 189(6) of the Criminal Code also poses no obstacle to a lawyer invoking the innocence at stake exception to solicitor-client privilege. Recall that this provision provides as follows:(6) Any information obtained by an interception that, but for the interception, would have been privileged remains privileged and inadmissible as evidence without the consent of the person enjoying the privilege. [63] As the Alberta Court of Appeal has observed, this provision simply “preserves privilege where information is intercepted by an authorized wiretap” (R. v. Cuthill, 2018 ABCA 321, 368 C.C.C. (3d) 261, at para. 26). The provision ensures that “any privilege over a conversation is not vitiated when the conversation is intercepted under the provisions of the Criminal Code” (R. v. Meer, 2015 ABCA 141, 323 C.C.C. (3d) 98, at para. 75; see also Lloyd v. The Queen, 1981 CanLII 219 (SCC), [1981] 2 S.C.R. 645, at pp. 649-50, citing R. v. Jean (1979), 1979 ALTASCAD 89 (CanLII), 7 C.R. (3d) 338 (Alta. S.C. (App. Div.)), at p. 352, aff’d 1980 CanLII 163 (SCC), [1980] 1 S.C.R. 400).
[64] Section 189(6) of the Criminal Code does not purport to eliminate common law exceptions to any privilege, nor can it be interpreted to do so. As this Court has noted, “[a]bsent clear legislative intention to the contrary, a statute should not be interpreted as substantially changing the law, including the common law” (R. v. D.L.W., 2016 SCC 22, [2016] 1 S.C.R. 402, at para. 21; R. v. Basque, 2023 SCC 18, at para. 49). No such clear legislative intention appears here. The provision simply preserves privilege during an interception. It does not address the common law exceptions, either expressly or by necessary implication.
[65] I therefore respectfully disagree with the trial judge’s view that this provision “bars [Ms.] Fox from betraying” her client’s solicitor-client privilege (para. 40). I also disagree with Ms. Fox’s bare assertion that “the plain language of s. 189(6) bars her from piercing [A.Y.]’s privilege without [A.Y.]’s consent” (R.F., at para. 82).
(5) The McClure Test Can Be Adapted to Apply to a Lawyer Seeking Access to Their Own Client’s Privileged Communications
[66] I see no reason in principle why the McClure test cannot be adapted to a situation where a lawyer seeks access to their client’s solicitor-client privileged communications to defend themselves against a criminal charge. Courts have wide discretion under their trial management power to address the timing and procedure for McClure applications (R. v. Samaniego, 2022 SCC 9, [2022] 1 S.C.R. 71, at paras. 19-26; see also Brown, at paras. 51-52, 73 and 87). That discretion should be exercised mindful of this Court’s general guidance in McClure and Brown.
[67] In my view, courts should consider three guiding principles at every stage of the McClure test:(i) Solicitor-client privilege should be safeguarded to the greatest degree reasonably possible and should be minimally impaired (Brown, at paras. 44, 77 and 96; Lavallee, at paras. 36-37);
(ii) The privilege holder client should have a voice throughout the process, since the privilege belongs to the client, not the lawyer (McClure, at para. 37; Lavallee, at paras. 24 and 39); and
(iii) In fashioning procedures, the court should consider the extent to which the accused lawyer is already within the “circle of privilege” by being privy to the privileged communications (R. v. Basi, 2009 SCC 52, [2009] 3 S.C.R. 389, at para. 44). In rare cases, the accused lawyer may be in a solicitor-client relationship with the privilege holder client but may not be privy to the privileged communications, such as when the accused lawyer is part of a team of lawyers that provided the legal advice at issue. (a) The Threshold to Address the Two-Stage Innocence at Stake Test
[68] McClure provides that before a court considers the two-stage innocence at stake test, the accused must first meet a preliminary threshold by establishing that: (a) the information sought from the solicitor-client communication is not available from any other source; and (b) the accused is otherwise unable to raise a reasonable doubt (McClure, at paras. 48-49; Brown, at para. 4).
[69] McClure’s threshold question ensures that the innocence at stake test is not engaged lightly. An intrusion on solicitor-client privilege should occur only when necessary for an accused to raise a reasonable doubt. It is not enough to show that the privileged communication is the simplest or most convenient way to adduce the information or that it allows the accused to mount a more complete defence. As this Court has directed, “the policy reasons favouring the protection of the confidentiality of solicitor-client communications must prevail unless there is a genuine danger of wrongful conviction” (McClure, at para. 49; see also Brown, at paras. 3 and 29).
[70] The threshold question does not require review or disclosure of the privileged communication. This question focuses on extraneous matters such as the existence of alternative sources for the information, the strength or scope of the Crown’s case, and potential affirmative defences, all of which can be raised without referring to the content of the privileged communication. Further, even if a McClure application is dismissed, the defence has the right to renew the application later in the case if they believe that the accused’s innocence is at stake (Brown, at para. 54).
(b) Stage One: The Accused Must Demonstrate an Evidentiary Basis to Conclude That a Privileged Communication Exists That Could Raise a Reasonable Doubt
[71] At the first stage of the innocence at stake test, the accused must provide some evidentiary basis, and not just speculation, that there is a privileged communication that could raise a reasonable doubt as to their guilt. At this stage, the court is simply deciding whether to review the evidence. This stage ensures that there is some evidentiary basis for the request and prevents fishing expeditions and unnecessary intrusions into privileged communications (McClure, at paras. 52-53).
[72] The evidentiary burden at the first stage is flexible and can accommodate limitations on the accused’s knowledge. For example, in McClure, this Court recognized that because the accused had no prior access to the civil litigation file to which he sought access, it would have been unfair to demand anything more precise than a description of a possible privileged communication (para. 54). At the same time, the evidentiary burden should account for the accused lawyer’s familiarity with, and inability to disclose, the content of the privileged communication. As urged by the intervener Attorney General of Ontario, an accused lawyer who believes that a privileged communication could raise a reasonable doubt as to their guilt can simply attest to this, such as in an affidavit.
[73] This approach mirrors the practice adopted in similar contexts where a court will usually not go behind a lawyer’s representation if this would intrude on solicitor-client privilege. For example, in Cunningham, this Court held that where a lawyer seeks to withdraw from representing a client for ethical reasons, the court “must accept counsel’s answer at face value and not enquire further so as to avoid trenching on potential issues of solicitor-client privilege” (para. 48; see also R. v. Short, 2018 ONCA 1, 358 C.C.C. (3d) 337, at para. 35). Similarly, an accused lawyer’s simple representation can form the evidentiary basis to find that the first stage of the innocence at stake test is met.
[74] It is also important to underscore that, at this stage, the accused lawyer cannot discuss the content of the privileged communication with anybody outside the circle of the privilege, including their own counsel (Brassington, at paras. 42 and 49-51). Recall that in Brassington, concerning informer privilege, this Court held that accused police officers attempting to meet their evidentiary burden at the first stage of the innocence at stake test could not breach informer privilege by disclosing the privileged information to their own lawyers. Instead, an accused officer could “simply advise counsel of [their belief that evidence pertaining to a confidential informer would prove that officer’s innocence] without disclosing any details tending to identify the informer” (para. 50).
[75] The first stage of the McClure test should usually be conducted in open court. Once the accused has attested that the privileged communication could raise a reasonable doubt as to their guilt, the accused lawyer’s counsel or potentially amicus curiae can make submissions as to whether the first stage of the innocence at stake test has been satisfied. Amicus curiae may be necessary if, for example, the accused lawyer is self-represented and has difficulty representing themselves given the limitations of what they can disclose in open court. Submissions by counsel or amicus curiae would generally rely on the accused lawyer’s representation that privileged communications could raise a reasonable doubt as to their guilt, any non-privileged information in the accused’s possession, including from the Crown disclosure, and the Crown’s response. The trial judge would then evaluate the submissions in the context of the Crown’s case against the accused.
(c) Stage Two: The Trial Judge Should Examine the Privileged Communication to Determine Whether It Is Likely to Raise a Reasonable Doubt
[76] If, at the first stage of the innocence at stake test the court is satisfied that the privileged communication could raise a reasonable doubt, then at the second stage the court orders disclosure of the privileged communication to the court and reviews it to determine whether it would likely raise a reasonable doubt. Persons outside the circle of privilege should generally not participate at this stage. The burden at the second stage (the communication is likely to raise a reasonable doubt) is higher than at the first stage (the communication could raise a reasonable doubt). Evidence that merely advances ancillary attacks on the Crown’s case will likely not meet this burden (McClure, at paras. 57-60; Brown, at para. 4).
[77] In useful submissions, the interveners Attorney General of Ontario, Canadian Civil Liberties Association, and British Columbia Civil Liberties Association noted that courts have broad discretion to fashion procedures to ensure trial fairness while minimizing any intrusions into solicitor-client privilege. Such procedures can include:(1) Reviewing the privileged communication in camera and without the parties (Canadian Broadcasting Corp. v. Named Person, 2024 SCC 21, at paras. 47-49);
(2) Asking the accused lawyer or the privilege holder to supply an affidavit to help interpret, explain, or provide context for the privileged communication (Brown, at paras. 64-65);
(3) Inviting submissions from parties within the circle of privilege, including the accused lawyer (but not their counsel) and the privilege holder and their counsel (Brassington, at para. 42);
(4) Appointing amicus curiae to review the privileged communication and make submissions on behalf of the Crown, the defence, or the privilege holder (Brassington, at para. 38). The trial judge has broad discretion to appoint amicus curiae and to tailor their mandate to the circumstances (R. v. Kahsai, 2023 SCC 20, at para. 50; Basi, at para. 57); and
(5) Other measures the court considers appropriate. (d) Production of the Privileged Communication After a Successful McClure Application
[78] If the court concludes that the privileged material is likely to raise a reasonable doubt, then the court should order the privileged communication produced to the accused and their lawyer, but only to the extent necessary to allow the accused to raise a reasonable doubt as to their guilt (Brown, at para. 77). Care should be taken to remove irrelevant material and to protect the identities of third parties who may be named in the privileged material. The court should also exercise its discretion “to protect the confidentiality of the disclosed communications vis-à-vis the participants in the trial and the public” (para. 87; see also para. 77). For example, the trial judge may consider whether to impose a protective order under s. 486(1) of the Criminal Code. In determining the extent of the disclosure, the court must be mindful of “[its] role . . . to balance full answer and defence and the fundamental principle of solicitor-client privilege” (S. C. Hill, D. M. Tanovich and L. P. Strezos, McWilliams’ Canadian Criminal Evidence (5th ed. (loose-leaf)), at § 13:16).
[79] The court should grant access to the privileged communication only to the accused lawyer whose innocence is at stake and their counsel (Brown, at paras. 78-84). The Crown cannot be provided with access to the privileged communication at this stage. As explained in Brown, “[t]he Crown cannot ‘piggy back’ onto this exceptional . . . disclosure of privileged material to which it would not have access in the ordinary case” (para. 84). The Crown should be provided with the privileged communication only to the extent that the accused relies on it at trial or during pre-trial negotiations (para. 85). These measures are essential to allow the accused to raise a reasonable doubt while ensuring minimal impairment of solicitor-client privilege.
[80] If any privileged communications are disclosed pursuant to a McClure application, the privilege holder is entitled to protection through a grant of use immunity and derivative use immunity (Brown, at paras. 96-104). As a result, “the privilege holder’s communications and any evidence derived therefrom cannot be used in a subsequent case against the privilege holder” (para. 100).
[81] Lastly, the intervener British Columbia Civil Liberties Association suggested that there may be cases where disclosing privileged communications under the McClure test would be so prejudicial to public confidence in the administration of justice that the only appropriate remedy would be to refuse disclosure and stay the proceedings against the accused lawyer. Because lawyers will often know intimate or inculpatory details about their clients, disclosure of that information may cause the client serious harm and undermine public confidence in the solicitor-client relationship, and thus also in the integrity of the justice system. Since the trial judge would have already concluded that the evidence likely raises a reasonable doubt, in some circumstances a stay of proceedings may be appropriate (see, by analogy, R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 32).
[82] However, the issue raised by the British Columba Civil Liberties Association does not arise in this case because Ms. Fox did not bring a McClure application. As a result, the content of the privileged communication and any impact its disclosure may have on public confidence in the administration of justice are simply unknown. Nor did either party to the appeal make submissions on this point. In my view, whether to adopt such a modification of the McClure and Brown framework should be left for another day, when the issue arises on the facts and the Court has the benefit of full submissions.
(e) Summary
[83] Lawyers, like other individuals accused of committing a crime, have a constitutional right to make full answer and defence to a criminal charge. A lawyer charged with a criminal offence can invoke the innocence at stake exception to solicitor-client privilege to seek access to their client’s privileged communication for use in their own defence. The innocence at stake test can be modified as appropriate to allow the lawyer to make full answer and defence and to protect their right to a fair trial. At the first stage of the innocence at stake test, the lawyer can simply attest to the existence of a solicitor-client communication that could raise a reasonable doubt as to their guilt. The court can take that assertion at face value at this stage. At the second stage of the innocence at stake test, when deciding whether the lawyer has shown that the privileged communication is likely to raise a reasonable doubt as to their guilt, the court has broad discretion to fashion procedures to account for the reality that the accused lawyer will usually be within the circle of privilege. Amicus curiae can also be engaged to assist the court as appropriate.
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