Summary

41215

His Majesty the King v. Sharon Fox

(Saskatchewan) (Criminal) (As of Right / By Leave)

Keywords

Criminal Law — Charter of rights — Search and seizure (s. 8) — Full answer and defence (ss. 7 and 11(d) — Solicitor-client privilege — Wire-tap authorization — Interaction between solicitor-client privilege and an accused’s lawyer’s Charter rights — Wire-tap monitoring and recording of phone call between defence counsel and client — Whether the respondent’s right to make full answer and defence was breached by not having access to the full recording of a phone call protected by solicitor-client privilege — Whether evidence obtained by s. 8 breaches should have been excluded.

Summary

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The respondent is a criminal defence lawyer whose client was the subject of a wiretap authorization under the Criminal Code. The authorization did not permit live monitoring of phone calls with a lawyer; such calls could be recorded, but a judge’s order was required to access them. During the surveillance operation, the respondent called her client, which was automatically recorded. A civilian employee also listened to a portion of the call before disconnecting.

A reviewing judge concluded that an initial portion of the telephone call was not subject to solicitor-client privilege and it was released to the Crown. The recording revealed the respondent informed her client that a third party had been arrested and that the police would likely be obtaining search warrants for places where the third party had been. The respondent was charged with wilfully attempting to obstruct, prevent or defeat the course of justice by interfering in an ongoing police investigation, contrary to s. 139(2) of the Criminal Code.

In a voir dire, the trial judge concluded that the respondent’s rights under s. 8 of the Charter were not breached with respect to the civilian employee listening to her phone conversation. However, he also concluded that her rights under ss. 7 and 11(d) of the Charter had been breached due to her inability to access the second, privileged portion of the recording. He ordered the entire recording excluded under s. 24(1) of the Charter. The Crown called no evidence and the respondent was acquitted.

A majority of the Court of Appeal affirmed the acquittal and the trial judge’s decision with respect to the breaches of the respondent’s rights under ss. 7 and 11(d) of the Charter. However, it also concluded that her rights under s. 8 had been breached, and it therefore would have excluded the evidence of the telephone call under s. 24(2) of the Charter rather than s. 24(1). The dissenting judge would have held that the respondent’s ss. 7 and 11(d) rights were not breached. He agreed with the majority that there was a breach of her s. 8 rights, but he would have held that the evidence should not be excluded under s. 24(2). He would have ordered a new trial.

Lower Court Rulings

October 25, 2022
Court of King's Bench for Saskatchewan

CRM-RG-00275-2021, 2022 SKKB 235
See file
March 8, 2024
Court of Appeal for Saskatchewan

2024 SKCA 26
See file