R. v. McClure, 2001 SCC 14, [2001] 1 SCR 445

R. v. McClure, [2001] 1 S.C.R. 445, 2001 SCC 14

J.C.                                                                                                     Appellant

v.

Her Majesty The Queen                                                                   Respondent

and

David Edward McClure                                                                     Respondent

and

The Advocates’ Society and

the Criminal Lawyers’ Association (Ontario)                                   Interveners

Indexed as:  R. v. McClure

Neutral citation:  2001 SCC 14.

File No.:  27109.

2000:  October 5; 2001: March 2.

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

on appeal from the ontario court (general division)

Criminal law -- Fair trial -- Full answer and defence -- Solicitor-client privilege -- Accused charged with sexual offences -- Complainant bringing civil action against accused -- Accused seeking  production of complainant’s civil litigation file -- Accused arguing that information needed in criminal action to determine nature of complainant’s allegations and to assess motive for fabrication or exaggeration of abuse -- Whether solicitor-client privilege should yield to accused’s right to make full  answer and defence -- If so, in what circumstances -- Whether trial judge erred in ordering civil litigation file to be disclosed.

Criminal law -- Fair trial -- Full answer and defence -- Solicitor-client privilege -- Appropriate test to determine whether solicitor-client privilege should yield to accused’s right  to make full  answer and defence.

The respondent M was a librarian and teacher at the school attended by the appellant in the mid-1970s.  In 1997, M was charged with sexual offences against 11 former students.  After reading about M’s arrest, the appellant gave a statement to the police alleging incidents of sexual touching by M.  His allegations were later added to the indictment against M.  The appellant also brought a civil action against M.  M sought production of  the appellant’s civil litigation file to determine the nature of the allegations and to assess his motive to fabricate or exaggerate incidents of abuse.  In his first ruling, the trial judge applied the O’Connor test and ordered the production of  the appellant’s civil litigation file for his review.  In a second ruling, he granted M access to the file but ordered all references to quantum of settlement and fees deleted from the produced file.  The trial judge ruled that certain matters of sequence were significant, and not available to the defence without access to the appellant’s file.  The order granting access was stayed pending appeal and the two counts involving the appellant were severed and never prosecuted.  The appellant, who was not a party in the criminal trial, was granted  leave to appeal the order to this Court pursuant to s. 40(1)  of the  Supreme Court Act .

Held:  The appeal should be allowed and the order for production set aside.

The solicitor-client privilege is a principle of fundamental importance to the administration of justice as a whole.  Despite its importance, however, the privilege is not absolute and, in limited circumstances, may yield to allow an accused to make full answer and defence.  The appropriate test for determining whether to set aside solicitor-client privilege is the innocence at stake test.  The test is a stringent one.  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.  Here, the trial judge erred in using the O’Connor test for the production of third party confidential therapeutic records to govern whether the litigation file should have been produced to the defence.

Before the innocence at stake 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.  The 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.  The judge must ask: “Is there some evidentiary basis for the claim that a solicitor-client communication exists that could raise a reasonable doubt about the guilt of the accused?”  It falls to the accused to demonstrate some evidentiary basis for his claim.  Mere speculation as to what a file might contain is insufficient.  If the judge is satisfied that such an evidentiary basis exists, she must, at the second stage, examine the record and ask:  “Is there something in the solicitor-client communication that is likely to raise a reasonable doubt about the accused’s guilt?”   In most cases, this means that, unless the solicitor-client communication goes directly to one of the elements of the offence, it will not be sufficient to meet this requirement.  If the second stage of the test is met, then the judge should order the production but only of that portion of the solicitor-client file that is necessary to raise the defence claimed.

The circumstances in this case did not justify invading the solicitor-client privilege and the trial judge should not have ordered the appellant’s litigation file produced to M.  The first stage of the innocence at stake test for solicitor-client privilege was not met.  There was no evidence that information sought by M could raise a reasonable doubt as to his guilt.  Even if in this case the chronological order of the appellant’s revelations -- to the lawyer, police, therapist, and then the start of a civil suit -- was unusual, it does not justify overriding solicitor-client privilege.  This “unusual” chronology does not rise to a level that demonstrates that the litigation file could raise a reasonable doubt as to guilt and so fails at the first stage.  M would be entitled to raise the issue of the appellant’s motive to fabricate events for the sake of a civil action at trial from another source, simply by pointing out the sequence of events and the fact that a civil action was initiated.

Cases Cited

Distinguished:  R. v. O’Connor, [1995] 4 S.C.R. 411; discussed: R. v. Leipert, [1997] 1 S.C.R. 281; referred to: Solosky v. The Queen, [1980] 1 S.C.R. 821; R. v. Colvin (1970), 1 C.C.C. (2d) 8; Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860; Geffen v. Goodman Estate, [1991] 2 S.C.R. 353; Smith v. Jones, [1999] 1 S.C.R. 455; R. v. Gruenke, [1991] 3 S.C.R. 263; R. v. Seaboyer, [1991] 2 S.C.R. 577; R. v. Lyons, [1987] 2 S.C.R. 309; R. v. Mills, [1999] 3 S.C.R. 668; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835.

Statutes and Regulations Cited

Canada Evidence Act , R.S.C. 1985, c. C-5 , s. 4(3) .

Canadian Charter of Rights and Freedoms , s. 7 .

Criminal Code , R.S.C. 1985, c. C-46  [am. 1997, c. 30], ss. 278.1 to 278.9.

Supreme Court Act , R.S.C. 1985, c. S-26 , s. 40(1) .

Authors Cited

Auburn, Jonathan.  Legal Professional Privilege:  Law and Theory.  Oxford:  Hart Publishing, 2000.

Orkin, Mark M.  Legal Ethics:  A Study of Professional Conduct.  Toronto: Cartwright & Sons, 1957.

Sopinka, John, Sidney N. Lederman and Alan W. Bryant.  The Law of Evidence in Canada, 2nd ed.  Toronto:  Butterworths, 1999.

Wigmore, John Henry.  Evidence in Trials at Common Law, vol. 8.  Revised by John T. McNaughton.  Boston:  Little, Brown, 1961.                                                                   

APPEAL from a judgment of the Ontario Court (General Division), rendered on December 4, 1998, ordering the production of the appellant’s civil litigation file to the respondent McClure.  Appeal allowed.

Anthony Moustacalis and Daniel Lawson, for the appellant.

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

Maureen Forestell and Samantha G. Peeris, for the respondent McClure.

John M. Rosen, for the intervener The Advocates’ Society.

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

The judgment of the Court was delivered by

1                                    Major J. — This appeal revisits the reach of solicitor-client privilege.  This privilege comes with a long history.  Its value has been tested since early in the common law.  Its importance has not diminished.

2                                   Solicitor-client privilege describes the privilege that exists between a client and his or her lawyer.  This privilege is fundamental to the justice system in Canada.  The law is a complex web of interests, relationships and rules.  The integrity of the administration of justice depends upon the unique role of the solicitor who provides legal advice to clients within this complex system.  At the heart of this privilege lies the concept that people must be able to speak candidly with their lawyers and so enable their interests to be fully represented.

3                                   Interests compete within our legal system.  The policy justifying the existence of solicitor-client privilege might clash with an accused’s right under s. 7  of the Canadian Charter of Rights and Freedoms  to make full answer and defence.  This appeal raises the issue of whether the solicitor-client privilege of a third person should yield to permit an accused to make full answer and defence to a criminal charge, and, if so, when.

4                                   Solicitor-client privilege and the right to make full answer and defence are integral to our system of justice.  Solicitor-client privilege is not absolute so, in rare circumstances, it will be subordinated to an individual’s right to make full answer and defence.  The problem is when and under what circumstances the right to full answer and defence will override the solicitor-client privilege.

5                                   For the reasons that follow, I conclude with respect that the occasions when the solicitor-client privilege yields are rare and the test to be met is a stringent one.  The circumstances in this case did not justify invading the privilege.  The trial judge should not have ordered the litigation file of the third party produced to the accused.

I.  Facts

6                                   The respondent, David Edward McClure, was a librarian and teacher at the Cherokee Public School attended by the appellant, J.C., in the mid-1970s.  The respondent McClure was arrested on February 19, 1997 and charged with sexual offences against 11 former students alleged to have occurred between 1962 and 1993.

7                                   After reading about McClure’s arrest in the newspaper, the appellant J.C. retained a lawyer and, on March 21, 1997, gave a taped statement to police alleging incidents of sexual touching by McClure.  The appellant’s allegations were eventually added to the indictment against the respondent.  The appellant met with a therapist and, on May 27, 1997, brought a civil action in the Ontario Court (General Division) against both the respondent McClure and the North York Board of Education.

8                                   On November 2, 1997, McClure sought production of confidential records from 10 of the 11 complainants, including a demand for the appellant’s civil litigation file.  The appellant’s litigation file was sought, it was submitted, to determine the nature of the allegations first made by the appellant to his solicitor and to assess the extent of the appellant’s motive to fabricate or exaggerate the incidents of abuse.

II.   Judicial History

A.  Ontario Court (General Division), Ruling of Hawkins J., November 25, 1998

9                                   Hawkins J. stated that in accordance with R. v. O’Connor, [1995] 4 S.C.R. 411, the appellant’s therapeutic records, school records and solicitor-client records had to be produced to him for review.

10                               The trial judge emphasized that he was only dealing with the first step of the “O’Connor test”, to determine if the record was “ ‘likely relevant’ to some specific issue or the issue of credibility”, sufficient to order production to the trial judge for further screening prior to ordering production to the defence.

11                               Hawkins J. concluded that the “unusual chronological order” of the revelations of the appellant – to the lawyer, police, therapist, and then the start of a civil suit – could raise the question of motive and pointed to the likely relevance for the defence of the appellant’s privileged instructions to his lawyer.

B.  Ontario Court (General Division), Ruling of Hawkins J., December 4, 1998

12                               At the second hearing, presumably being satisfied that the first step had been met, Hawkins J. granted McClure access to J.C.’s litigation file.  He concluded that the accused should be entitled to question the motive of the appellant at the trial of the accused in an attempt to show that the appellant’s complaint in the criminal proceeding was made merely to bolster the civil action against the accused and the North York School Board.  Although most of this information was available to the respondent McClure without access to the appellant’s litigation file, the trial judge nonetheless found that certain matters of sequence were significant, and not necessarily available to the defence without access to the complainant’s file.

13                               He concluded that the balance between the confidentiality of the litigation file and the right of the respondent McClure to make full answer and defence could be met by ordering all references to quantum of settlement and fees deleted from the produced file.

14                               The trial judge’s order was stayed pending appeal:  [1999] O.J. No. 1405 (QL).  The two counts involving the appellant were severed and never prosecuted.  The respondent McClure was ultimately convicted of 11 counts, in relation to 6 other complainants.

15                               There is no court of appeal judgment.  The third party appellant, J.C., was not a party in the criminal trial.  Consequently, he could not appeal the interlocutory order for the production of his private records. An application was made directly to this Court (s. 40(1) of the Supreme Court Act , R.S.C. 1985, c. S-26 ) for leave to appeal the “final order” ordering production of his litigation file.

III.     Issues

16                               1.    Should the solicitor-client privilege ever give way to an accused’s right to full answer and defence and if so in what circumstances?

2.                If solicitor-client privilege should yield, what is the appropriate test?

3.                Should the trial judge have ordered the litigation file to be disclosed in the circumstances of this case?

IV.   Analysis

A.   Evolution of Solicitor-Client Privilege

17                               Solicitor-client privilege is part of and fundamental to the Canadian legal system.  While its historical roots are a rule of evidence, it has evolved into a fundamental and substantive rule of law.

18                               There is academic dispute over the origins of solicitor-client privilege.  The commonly accepted history of the privilege was set out by Wigmore in Evidence in Trials at Common Law, vol. 8 (McNaughton rev. 1961), at p. 543.  In Wigmore’s “honor theory,” the rationale for solicitor-client privilege stems from “a consideration for the oath and the honor of the attorney rather than for the apprehensions of his client” (emphasis in original). 

19                               This theory was referred to in subsequent case law in Canada.  In Solosky v. The Queen, [1980] 1 S.C.R. 821, Dickson J., as he then was, at p. 834, stated that the history of the privilege could be traced to the reign of Elizabeth I:

[Solicitor-client privilege] stemmed from respect for the ‘oath and honour’ of the lawyer, dutybound to guard closely the secrets of his client, and was restricted in operation to an exemption from testimonial compulsion.

20                               The honor theory was expounded by J. Sopinka, S. N. Lederman and A. W. Bryant in The Law of Evidence in Canada (2nd ed. 1999), at p. 728:

The solicitor-client privilege is the oldest of the privileges for confidential communications with roots in the 16th century.  The basis of the early rule was the oath and honour of the solicitor, as a professional man and a gentleman, to keep his client’s secret.  Thus, the early privilege belonged solely to the solicitor, and the client benefited from it only incidentally.  [Footnotes omitted.]

21                               The honor theory was rejected by J. Auburn in his book Legal Professional Privilege:  Law and Theory (2000), at pp. 6-7:

When “honour” was invoked in the sixteenth century in the context of witness testimony, it meant an alternative basis for the taking of evidence, i.e. that evidence should be taken on one’s word or in writing, rather than on the strength of the oath. It did not mean that evidence should not be taken at all.

                                                                   . . .

The Wigmorean view of the origin of the privilege is flawed, both in regard to the original rationale for the privilege and in seeing it as an immediate reaction to testimonial compulsion. The privilege was not so obviously important that it immediately commended itself as a natural exception to compulsion. It may have arisen gradually, and some time after the advent of compulsion, as a rule grounded more on practicality and the apparent illogicality of having a lawyer testify to matters his client could not have spoken of.   [Footnotes omitted.]

The debate surrounding the origin of solicitor-client privilege while of some interest need not be resolved here. Whatever the origin of the privilege, it has clearly evolved into a substantive rule of law in Canada.

22                               The solicitor-client privilege began in Canada as a rule of evidence.  See R. v. Colvin (1970), 1 C.C.C. (2d) 8 (Ont. H.C.), per Osler J., at p. 13:

Finally, the question of solicitor-client privilege is, in this connection, a troublesome one. On the one hand, no authority should be given carte blanche to search through the files in a solicitor’s office in hopes of discovering material prepared for the purpose of advising the client in the normal and legitimate course of professional practice. The privilege, however, is exclusively that of the client and does not extend to correspondence, memoranda or documents prepared for the purpose of assisting a client to commit a crime. . . .

There can be no sure way of classifying the various types of material in advance and, in any event, it must be remembered that the rule is a rule of evidence, not a rule of property.  [Emphasis added.]

23                               In time, the status of solicitor-client privilege as a rule was elevated in the common law.  See Solosky, supra, per Dickson J., at p. 836:

Recent case law has taken the traditional doctrine of privilege and placed it on a new plane. Privilege is no longer regarded merely as a rule of evidence which acts as a shield to prevent privileged materials from being tendered in evidence in a court room.

This was expanded in Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860.  Lamer J.,  as he then was, recognized the implications of Solosky, supra, at p. 875:

The Court [in Solosky, supra] in fact, in my view, applied a substantive rule, without actually formulating it, and, consequently, recognized implicitly that the right to confidentiality, which had long ago given rise to a rule of evidence, had also since given rise to a substantive rule.

24                               In Geffen v. Goodman Estate, [1991] 2 S.C.R. 353, at p. 383, Wilson J. confirmed that in Solosky, supra, solicitor-client privilege was a “fundamental civil and legal right”.  Finally, in Smith v. Jones, [1999] 1 S.C.R. 455, Cory J. for the majority stated at para. 45:  “solicitor-client privilege has long been regarded as fundamentally important to our judicial system” and at para. 48:  “now it has evolved into a substantive rule.”

25                               The existence of solicitor-client privilege as a fundamental legal right answers little.  The solicitor-client privilege must be examined in the context of other types of privileges to demonstrate its unique status within the legal system.

B.  Types of Privilege

26                               The law recognizes a number of communications as worthy of confidentiality.  The protection of these communications serves a public interest and they are generally referred to as privileged.   

27                               There are currently two recognized categories of privilege: relationships that are protected by a “class privilege” and relationships that are not protected by a class privilege but may still be protected on a “case-by-case” basis.  See R. v. Gruenke, [1991] 3 S.C.R. 263, per Lamer C.J., at p. 286, for a description of “class privilege”:

The parties have tended to distinguish between two categories: a “blanket”,  prima facie, common law, or “class” privilege on the one hand, and a “case-by-case” privilege on the other.  The first four terms are used to refer to a privilege which was recognized at common law and one for which there is a prima facie presumption of inadmissibility (once it has been established that the relationship fits within the class) unless the party urging admission can show why the communications should not be privileged (i.e., why they should be admitted into evidence as an exception to the general rule).  Such communications are excluded not because the evidence is not relevant, but rather because, there are overriding policy reasons to exclude this relevant evidence.  Solicitor-client communications appear to fall within this first category. . . .   [Emphasis in original.]

28                               For a relationship to be protected by a class privilege, thereby warranting a prima facie presumption of inadmissibility, the relationship must fall within a traditionally protected class.  Solicitor-client privilege, because of its unique position in our legal fabric, is the most notable example of a class privilege.  Other examples of class privileges are spousal privilege (now codified in s. 4(3)  of the Canada Evidence Act , R.S.C. 1985, c. C-5 ) and informer privilege (which is a subset of public interest immunity).

29                               Other confidential relationships are not protected by a class privilege, but may be protected on a case-by-case basis.  Examples of such relationships include doctor-patient, psychologist-patient, journalist-informant and religious communications.  The Wigmore test, containing four criteria, has come to govern the circumstances under which privilege is extended to certain communications that are not traditionally-recognized class privileges (Wigmore, supra, at p. 527):

(1)       The communications must originate in a confidence that they will not be disclosed.

(2)       This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.

(3)       The relation must be one which in the opinion of the community ought to be sedulously fostered.

(4)       The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.  [Emphasis deleted.]

30                               Medical therapist records are different because, although a traditional common law privilege does not attach to these documents, a right to confidentiality exists upon balancing individual rights: the reasonable expectation of privacy of the third person versus the right to make full answer and defence to a criminal charge.  The procedure for protection of such records is codified in ss. 278.1  to 278.9  of the Criminal Code , R.S.C. 1985, c. C-46 .

C.     Rationale of Solicitor-Client Privilege

31                               The foregoing privileges, such as communication between a doctor and his patient, do not occupy the unique position of solicitor-client privilege or resonate with the same concerns.  This privilege, by itself, commands a unique status within the legal system.  The important relationship between a client and his or her lawyer stretches beyond the parties and is integral to the workings of the legal system itself.  The solicitor-client relationship is a part of that system, not ancillary to it.  See Gruenke, supra, per Lamer C.J., at p. 289:           

The prima facie protection for solicitor-client communications is based on the fact that the relationship and the communications between solicitor and client are essential to the effective operation of the legal system. Such communications are inextricably linked with the very system which desires the disclosure of the communication (see: Geffen v. Goodman Estate, supra, and Solosky v. The Queen, supra).  In my view, religious communications, notwithstanding their social importance, are not inextricably linked with the justice system in the way that solicitor-client communications surely are.

It is this distinctive status within the justice system that characterizes the solicitor-client privilege as a class privilege, and the protection is available to all who fall within the class.

32                               That solicitor-client privilege is of fundamental importance was repeated in Jones, supra, per Cory J., at para. 45:

The solicitor-client privilege has long been regarded as fundamentally important to our judicial system.  Well over a century ago in Anderson v. Bank of British Columbia (1876), 2 Ch. D. 644 (C.A.), at p. 649, the importance of the rule was recognized:

The object and meaning of the rule is this: that as, by reason of the complexity and difficulty of our law, litigation can only be properly conducted by professional men, it is absolutely necessary that a man, in order to prosecute his rights or to defend himself from an improper claim, should have recourse to the assistance of professional lawyers,  . . . to use a vulgar phrase, that he should be able to make a clean breast of it to the gentleman whom he consults with a view to the prosecution of his claim, or the substantiating of his defence . . . that he should be able to place unrestricted and unbounded confidence in the professional agent, and that the communications he so makes to him should be kept secret, unless with his consent (for it is his privilege, and not the privilege of the confidential agent), that he should be enabled properly to conduct his litigation.

33                               The importance of solicitor-client privilege to both the legal system and society as a whole assists in determining whether and in what circumstances the privilege should yield to an individual’s right to make full answer and defence.  The law is complex.  Lawyers have a unique role.  Free and candid communication between the lawyer and client protects the legal rights of the citizen. It is essential for the lawyer to know all of the facts of the client’s position.  The existence of a fundamental right to privilege between the two encourages disclosure within the confines of the relationship.  The danger in eroding solicitor-client privilege is the potential to stifle communication between the lawyer and client.  The need to protect the privilege determines its immunity to attack.

D.     Scope of Solicitor-Client Privilege

34                               Despite its importance, solicitor-client privilege is not absolute.  It is subject to exceptions in certain circumstances.  Jones, supra, examined whether the privilege should be displaced in the interest of protecting the safety of the public, per Cory J. at para. 51:

Just as no right is absolute so too the privilege, even that between solicitor and client, is subject to clearly defined exceptions. The decision to exclude evidence that would be both relevant and of substantial probative value because it is protected by the solicitor-client privilege represents a policy decision. It is based upon the importance to our legal system in general of the solicitor-client privilege. In certain circumstances, however, other societal values must prevail.

35                               However, solicitor-client privilege must be as close to absolute as possible to ensure public confidence and retain relevance.  As such, it will only yield in certain clearly defined circumstances, and does not involve a balancing of interests on a case- by-case basis.

36                               Not all communications between a lawyer and her client are privileged.  In order for the communication to be privileged, it must arise from communication between a lawyer and the client where the latter seeks lawful legal advice.  Wigmore, supra, sets out a statement of the broad rule, at p. 554:

Where legal advice of any kind is sought from a professional legal adviser in his capacity as such, the communications relating to that purpose, made in confidence by the client, are at his instance permanently protected from disclosure by himself or by the legal adviser, except the protection be waived.

37                               As stated, only communications made for the legitimate purpose of obtaining lawful professional advice or assistance are privileged.  The privilege may only be waived by the client.  See M. M. Orkin, Legal Ethics:  A Study of Professional Conduct (1957), at p. 84:

It is the duty of a solicitor to insist upon this privilege which extends to “all communication by a client to his solicitor or counsel for the purpose of obtaining professional advice or assistance in a pending action, or in any other proper matter for professional assistance” [Ludwig, 29 C.L. Times 253; Minet v. Morgan (1873), 8 Ch. App. 361]. The privilege is that of the client and can only be waived by the client.

E.      Full Answer and Defence

38                               While solicitor-client privilege is almost absolute, the question here is whether the privilege should be set aside to permit the accused his right to full answer and defence by permitting him access to a complainant’s civil litigation file.  It is agreed that the file in this case qualifies for solicitor-client privilege.  The solicitor-client privilege and the accused’s Charter  right to full answer and defence are both  protected by law.  Which prevails when they clash?

39                               R. v. Seaboyer, [1991] 2 S.C.R. 577, at p. 607, opened this question:

The right of the innocent not to be convicted is reflected in our society’s fundamental commitment to a fair trial, a commitment expressly embodied in s. 11( d )  of the Charter . It has long been recognized that an essential facet of a fair hearing is the “opportunity adequately to state [one’s] case”. . . .    This applies with particular force to the accused, who may not have the resources of the state at his or her disposal. Thus . . . our courts have held that even informer privilege and solicitor-client privilege may yield to the accused’s right to defend himself on a criminal charge:  . . . . R. v. Dunbar and Logan (1982), 68 C.C.C. (2d) 13 (Ont. C.A.).

40                               Rules and privileges will yield to the Charter  guarantee of a fair trial where they stand in the way of an innocent person establishing his or her innocence (see R. v. Leipert, [1997] 1 S.C.R. 281, at para. 24,  per McLachlin J., as she then was).  This Court has held that informer privilege will yield in circumstances where to fail to do so will result in a wrongful conviction.  Our system will not tolerate conviction of the innocent.  However, an accused’s right to make full answer and defence in our system, while broad, is understandably not perfect.  Section 7  of the Charter  entitles an accused to a fair hearing but not always to the most favourable procedures that could possibly be imagined (see R. v. Lyons, [1987] 2 S.C.R. 309, per La Forest J., at p. 362).

F.    Solicitor-Client Privilege vs. Full Answer and Defence

41                               Solicitor-client privilege and the right to make full answer and defence are principles of fundamental justice.  The right of an accused to full answer and defence is personal to him or her and engages the right to life, liberty, security of the person and the right of the innocent not to be convicted.  Solicitor-client privilege while also personal is broader and is important to the administration of justice as a whole.  It exists whether or not there is the immediacy of a trial or of a client seeking advice.

42                               The importance of both of these rights means that neither can always prevail.  In some limited circumstances, the solicitor-client privilege may yield to allow an accused to make full answer and defence.  What are those circumstances?

G.    Existing Tests

43                               In determining those circumstances, there are two useful tests which help to identify when the right to make full answer and defence will prevail over the need for confidentiality.  While useful, neither test sufficiently addresses the unique concerns evoked by solicitor-client privilege and, as explained later, more is needed.

44                               The first test originated in O’Connor, supra, relative to procedures to govern production of medical or therapeutic records that are in the hands of third parties. Subsequently, Parliament codified the procedure in ss. 278.1  to 278.9  of the Criminal Code  and its constitutionality was upheld in R. v. Mills, [1999] 3 S.C.R. 668.  The O’Connor test and ss. 278.1  to 278.9  of the Criminal Code  were created with the sensitivity and unique character of third party therapeutic records in mind.  They focus on an individual’s privacy interest and not the broader policy objectives underlying the administration of justice.

45                               The other test is the innocence at stake test for informer privilege, see  Leipert, supra.  This test details the circumstances under which the identity of an informer might have to be revealed.  The value of reliable informers to the administration of justice has been recognized for a long time, so much so that it too is a class privilege.  This explains why the high standard of showing that the innocence of the accused is at stake before permitting invasion of the privilege is necessary.  Should the privilege be invaded, the State then generally provides for the protection of the informer through various safety programs, again illustrating the public importance of that privilege.  The threshold created by the innocence at stake test comes the closest to addressing the concerns raised in this appeal as it is appropriately high.  Both informer privilege and solicitor-client privilege are ancient and hallowed protections.  See Leipert, supra, per McLachlin J., at para. 12:

Informer privilege is of such importance that once found, courts are not entitled to balance the benefit enuring from the privilege against countervailing considerations, as is the case, for example, with Crown privilege or privileges based on Wigmore’s four-part test:. . . .

H.   The Innocence at Stake Test for Solicitor-Client Privilege

46                               In granting the respondent McClure access to the complainant’s civil litigation file, the trial judge applied the O’Connor test for disclosure of confidential therapeutic records.  With respect, this was an error.  The appropriate test by which to determine whether to set aside solicitor-client privilege is the innocence at stake test, set out below.  Solicitor-client privilege should be set aside only in the most unusual cases.  Unless individuals can be certain that their communications with their solicitors will remain entirely confidential, their ability to speak freely will be undermined.

47                                 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.

48                               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.

49                               By way of illustration, if the accused could raise a reasonable doubt at his trial on the question of mens rea by access to the solicitor-client file but could also raise a reasonable doubt with the defence of alibi and/or identification, then it would be unnecessary to use the solicitor-client file.  The innocence of the accused would not be at stake but instead it is his wish to mount a more complete defence that would be affected.  On the surface it may appear harsh to deny access as the particular privileged evidence might raise a reasonable doubt, nonetheless, the policy reasons favouring the protection of the confidentiality of solicitor-client communications must prevail unless there is a genuine danger of wrongful conviction.

50                               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.

51                                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.

(1)   Stage #1

52                               The first stage of the innocence at stake test for invading the solicitor-client privilege requires production of the material to the trial judge for review.  There has to be some evidentiary basis for the request.  This is a threshold requirement designed to prevent “fishing expeditions”.  Without it, it would be too easy for the accused to demand examination of solicitor-client privileged communications by the trial judge.  As this request constitutes a significant invasion of solicitor-client privilege, it should not be entered into lightly.  On the other hand, the bar cannot be set so high that it can never be met.  The trial judge must ask: “Is there some evidentiary basis for the claim that a solicitor-client communication exists that could raise a reasonable doubt about the guilt of the accused?”

53                               It falls to the accused to demonstrate some evidentiary basis for his claim that there exists a solicitor-client communication relevant to the defence he raises.  Mere speculation as to what a file might contain is insufficient.

54                               That is then followed by a requirement that the communication sought by the accused could raise a reasonable doubt as to his guilt.  This must be considered in light of what the accused knows.  It is likely that the accused who, it must be remembered, has had no access to the file sought, may only provide a description of a possible communication.  It would be difficult to produce and unfair to demand anything more precise.  It is only at stage two that a court determines conclusively that such a communication actually exists.

55                               The evidence sought should be considered in conjunction with other available evidence in order to determine its importance.  It is the totality of the evidence that governs.  However, when the accused is either challenging credibility or raising collateral matters, it will be difficult to meet the standards required of stage one. 

56                               Where an accused fails to show that the information sought could raise a reasonable doubt as to guilt, the solicitor-client privilege prevails. 

(2)   Stage #2

57                               Once the first stage of the innocence at stake test for setting aside the solicitor-client privilege has been met, 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?”

58                               After a review of the evidence of the solicitor-client communication in question, the judge must decide whether the communication is likely to raise a reasonable doubt as to the guilt of the accused.  In most cases, this means that, unless the solicitor-client communication goes directly to one of the elements of the offence, it will not be sufficient to meet this requirement.  Simply providing evidence that advances ancillary attacks on the Crown’s case (e.g., by impugning the credibility of a Crown witness, or by providing evidence that suggests that some Crown evidence was obtained unconstitutionally) will very seldom be sufficient to meet this requirement.

59                               The trial judge does not have to conclude that the information definitely will raise a reasonable doubt.  If this were the case, the trial would effectively be over as soon as the trial judge ordered the solicitor-client file to be produced.  There would be nothing left to decide.  Instead, the information must likely raise a reasonable doubt as to the accused’s guilt.  Also, upon reviewing the evidence, if the trial judge finds material that will likely raise a reasonable doubt, stage two of the test is satisfied and the information should be produced to the defence even if this information was not argued as a basis for production by the defence at stage one.

60                               In determining whether or not the solicitor-client communication in question is likely to raise a reasonable doubt as to the guilt of the accused, the trial judge should consider that the communication in the solicitor-client  file cannot be marginal but must be sufficient to establish the basis for its admission.  It is the totality of the evidence then available that the trial judge considers in determining whether it is likely that the evidence can raise a reasonable doubt.

61                               The difficulties described in successfully overcoming solicitor-client privilege illustrate the importance and solemnity attached to it.  As described earlier, it is a cornerstone of our judicial system and any impediment to open candid and confidential discussion between lawyers and their clients will be rare and reluctantly imposed.

I.   Application to the Case at Bar

62                               In this case, the litigation file should not have been produced to the defence.

63                               With respect, the trial judge erred in using the earlier O’Connor test for the production of third party confidential therapeutic records to govern whether the litigation file should have been produced to the defence.

64                               The first stage of the innocence at stake test for solicitor-client privilege was not met.  There was no evidence that the information sought by the respondent McClure could raise a reasonable doubt as to his guilt.  Even if the chronology of events in this case -- i.e. lawyer, police, therapist, civil suit -- was unusual, it does not justify overriding solicitor-client privilege.  This “unusual” chronology does not rise to a level that demonstrates that the litigation file could raise a reasonable doubt as to guilt and so fails at the first stage.

65                               In addition, the accused would be able to raise the issue of the complainant’s motive to fabricate events for the sake of a civil action at trial from another source, simply by pointing out the sequence of events and the fact that a civil action was initiated.

66                               The third party appellant, J.C., could not appeal the interlocutory order for  production of his litigation file because he was not a party in the criminal trial.  Instead, he applied directly to this Court pursuant to s. 40(1)  of the Supreme Court Act  for leave to appeal the final order ordering production of his litigation file.  This avenue of appeal is unsatisfactory.  The usual avenue for appeal should be to the court of appeal of the province.  That court has broad powers of review and is the desirable forum for appeals of first instance.  This appeal is not the first demonstration of the anomaly of a direct appeal of an interlocutory order to the Supreme Court of Canada. The only apparent method of resolving this problem is by legislative amendment.  It is appropriate to echo the statements of Lamer C.J. in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, in dealing with a similar situation when, at p. 874, he said:

I hope that Parliament will soon consider filling this jurisdictional lacuna and establishing statutory rights of appeal for third parties. . . .

V.  Disposition

67                      The appeal is allowed and the order for production by Hawkins J. is set aside.

Appeal allowed.

Solicitor for the appellant:  Anthony Moustacalis, Toronto.

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

Solicitor for the respondent McClure: Maureen Forestell, Toronto.

Solicitors for the intervener The Advocates’ Society:  Rosen Wasser, Toronto.

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