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.