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Law students typically learn about solicitor-client privilege as centred around the client. Even if a client tells their lawyer that they, for example, obstructed evidence, their communication is “privileged,” and its production for use as evidence in court cannot be compelled. This privilege, so I was taught, ensures that clients can be frank with their lawyer; with the benefit of full disclosure from their client, lawyers can make the best case for their client. The facts in R v Fox, 2026 SCC 4 [Fox] turn this paradigm on its head: what if privilege is claimed not to protect the client, but the lawyer?
This Comment advances a broader criticism, and then a narrower criticism, of the majority’s decision: first, the SCC’s expansion of the R v McClure, 2001 SCC 14 [McClure] innocence at stake exception to solicitor-client privilege was not warranted under the doctrine of stare decisis; second, while not material to its decision, the majority unduly appealed to the protection of clients in the second stage of its s. 24 analysis.
Facts
Sharon Fox (“Ms. Fox”), a criminal defence lawyer, received a call from KG. KG had been arrested for drug trafficking (Fox, para 6). Ms. Fox then immediately called her client AY, someone who had worked with KG, to tell him that KG had been arrested (Fox, Appendix). Ms. Fox then said the following to AY:
FOX: ‘Kay. Um, they’ve arrested her for trafficking and possession for the purpose of trafficking.
[A.Y.]: Okay.
FOX: She has been under surveillance.
[A.Y.]: Ah huh.
FOX: Um you should know what that means.
[…]
[A.Y.]: So how did they arrest her for trafficking?
FOX: Because they’ve been surveilling her and she’s gone to a place where there has been product located.
[A.Y.]: Okay.
FOX: So I suspect based on their surveillance of her they will be, if they haven’t already, they will be drafting a search warrant for wherever places she’s been frequenting.
[A.Y.]: Okay.
FOX: Do you understand?
[A.Y.]: Yup. Thank you Sharon.
(Fox, Appendix, emphasis added)
But the RCMP were listening: they had received authorization to wiretap AY’s phone calls (Fox, para 4). The authorization, however, prohibited interception of AY’s phone calls if he was speaking with a lawyer to protect solicitor-client privilege (Fox, para 5). Accordingly, RCMP officers stopped listening after Ms. Fox had identified herself as an employee of a law firm (Fox, para 7). However, shortly after the RCMP officers stopped listening to the call, a civilian monitor employed by the police began listening to the call and continued listening, despite Ms. Fox’s multiple references to the fact that she was a lawyer (Fox, para 8).
Almost two months later, the Crown applied ex parte to the Saskatchewan Court of Queen’s Bench to determine which parts of the call were privileged.The court found that the first 2 minutes of the call were non-privileged, while the remaining 4 minutes were privileged (Fox, para 10). Based on the non-privileged part of the call (reproduced above in part), Ms. Fox was charged with attempting to obstruct justice (Fox, para 12).
Court of King’s Bench for Saskatchewan
In the course of her trial, Ms. Fox applied to the trial judge to exclude the non-privileged part of the call from evidence. The trial judge found that Ms. Fox’s obligations as a lawyer, the dissimilarity in facts between the instant case and the McClure case, and s. 189(6) of the Criminal Code prevented Ms. Fox from invoking the innocence at stake exception to privilege (Fox, para 15). This meant that she wouldn’t be able to use the privileged portion of her call with AY to make a full defence to the charge against her. Consequently, the trial judge held that her right to a fair trial under ss. 7 and 11(d) of the Charter was infringed by the admission of the non-privileged part of the call into evidence and thus excluded that evidence under s. 24 of the Charter to prevent an unfair trial (Fox, para 15). Ms. Fox was then acquitted (Fox, para 15).
Court of Appeal for Saskatchewan
A majority of the Court of Appeal for Saskatchewan [Fox SKCA] dismissed the Crown’s appeal (Fox, para 17). The majority agreed that Ms. Fox was unable to invoke the innocence at stake exception to use the privileged portion of the call to craft her defence. Her resultant inability to make a full defence infringed ss. 7 and 11(d) of the Charter. In addition, the majority found that Ms. Fox’s s. 8 Charter right (i.e., the right to be free from unreasonable search and seizure) was infringed by the civilian monitor listening to the call (Fox, para 22). Together, these infringements caused the majority to exclude the non-privileged part of the call under s. 24 of the Charter (Fox, para 21).
The dissenting judge, however, would have held that Ms. Fox’s obligations as a lawyer did not preclude the innocence at stake exception to privilege, stating that “a lawyer is not required to go to jail for their client” (Fox, para 25). However, the dissenting judge agreed with the majority that the recording of the call was obtained in a manner that infringed the s. 8 of the Charter (Fox, para 27). In his s. 24 analysis, the dissenting judge found that the s. 8 breach was outweighed by society’s interest in having the case decided on its full merits. Thus, he would have admitted the non-privileged part of the call as evidence (Fox, para 28).
Issues
There were two issues before the Supreme Court of Canada (the “SCC” or the “Court”):
- Whether a lawyer can invoke the “innocence at stake” exception to privilege for their own defence; and
- Whether the non-privileged part of Ms. Fox’s call should be excluded from evidence under s. 24 of the Charter.
Decision
Supreme Court of Canada
Contrary to the trial judge and the SKCA, Jamal J, writing for the majority, held that a lawyer could invoke the innocence at stake exception to privilege for their own defence (Fox, para 49). This is because a lawyer’s ethical obligations do not override their right to make a full defence to a criminal charge, and because holding otherwise would, in effect, treat lawyers charged with crime more favourably than other criminal defendants (Fox, paras 49, 58). Consequently, since the privileged part of the call could be admitted into evidence, Ms. Fox was not deprived of a right to a fair trial under ss. 7 and 11(d) by the admission of the non-privileged part of the call (Fox, para 84). However, in agreement with the SKCA, Jamal J found that Ms. Fox’s s. 8 right was infringed, creating a pathway for a s. 24 analysis (Fox, para 92).
Regarding the second issue, Jamal J held that the first two lines of inquiry in the s. 24 analysis—regarding the seriousness and the impact of the Charter-infringing conduct—outweighed the societal interest in having the case decided on its full merits (Fox, para 127). Therefore, the non-privileged part of the phone call was excluded so as not to bring the administration of justice into disrepute (Fox, para 127). In his reasons for his decision, Jamal J emphasized the foundational “constitutional dimensions” of solicitor-client privilege and noted the “casualness” in the failure of the RCMP to remediate the breach of privilege, which he determined to be strong factors in favour of excluding the phone call (Fox, para 128). Therefore, he dismissed the appeal.
O’Bonsawin J dissented. While she agreed with the majority’s conclusions regarding the innocence at stake exception and the breach of s. 8 of the Charter, she departed from the majority in her s. 24 analysis. She deferred to the trial judge’s characterization of “mere inadvertence” in the RCMP’s conduct and thus reasoned that the seriousness and impact of the s. 8 breach was not particularly strong (Fox, paras 140–150). She then emphasized that lawyers have a duty not only to their clients but also to the administration of justice (Fox, para 154). Consequently, O’Bonswain J reasoned that excluding the entirety of Ms. Fox’s phone call would create “the public perception that lawyers may undermine the truth-seeking function of the criminal justice system in order to obtain an unjust advantage for their client,” which would damage the repute of the administration of justice (Fox, para 154). Therefore, she would have admitted the phone call as evidence under s. 24 and allowed the appeal.
Analysis
The McClure “innocence at stake” exception should not have been expanded in Fox
In the second stage of the s. 24 analysis, Justice Jamal wrote that solicitor-client trust “is eroded when the state trespasses onto the near-absolute confidentiality of a solicitor-client relationship” (Fox, para 114). To be sure, this is true. However, recall that this state-imposed “trespass” onto a solicitor-client relationship had already happened with the majority’s (and the dissent’s) determination that the innocence at stake exception could be employed by lawyers. This Comment suggests that, while the innocence at stake exception may be liable to modification, Fox was not the appropriate case for such a modification.
It is notable that the “extremely high bar” of the McClure test, as well as the “significantly different factual circumstances” between McClure and Fox, caused the SKCA, and the trial judge, to not seriously consider whether the McClure test would have been met in the first place (Fox SKCA, paras 56–57, 68). For the SCC, however, a key factor that convinced the majority to expand the innocence at stake exception was the idea that lawyers should not be treated “unequally” (Fox, para 49). This “unequal” treatment arose because of the legal conundrum the Court was in: if Ms. Fox was unable to employ the innocence at stake exception, she would be unable to rely on other sources of evidence to make a full defence; she would then be able to establish that her right to a fair trial was breached and thus argue that the non-privileged part of the call should be excluded under s. 24 (Fox, para 58). Notably, this factor appears most convincing to the majority; the other reason, in essence, merely restates the well-established claim that solicitor-client privilege is not absolute (Fox, paras 50–55).
However, Fox is unique. The SKCA described the “extremely rare circumstance” of Fox as follows:
This is not a case where a client is accusing their own lawyer of misconduct, such as in a civil action for professional negligence or an assertion of ineffective assistance of counsel in a criminal appeal. It is not a case where a lawyer is being accused of being party to a client’s crime. It is not a case of a third party seeking to have solicitor–client privilege set aside. It is a case where a lawyer would be forced to apply for a court order permitting them to breach their own duties of loyalty and confidentiality (Fox SKCA, para 69).
In Fox, we are squarely within HLA Hart’s “penumbra” of uncertainty. Under the doctrine of stare decisis, unless there is a compelling, necessary reason to depart from past law, the courts should generally err on the side of keeping the law as it is. Therefore, if there is another pre-established pathway for the Court to reach a just decision, and thus no compelling reason to modify a previous test, it is less convincing to hold that such a test should be significantly expanded. But that is what happened in Fox. The Court had available the s. 8 pathway to trigger a s. 24 analysis, which allowed the majority to uphold the SKCA’s decision to acquit Ms. Fox. Therefore, the key concern of the SCC in the original McClure case—to prevent a genuine risk of wrongful conviction—was satisfied without needing to expand the test (McClure, para 47). Consequently, Fox does not appear to warrant such an expansion to a test that, in effect, forces a lawyer to be faced with “the terrible choice between her own interests and those of her client” (Fox SKCA, para 69).
The majority unduly appealed to the protection of clients to show the wiretapping’s impact on a lawyer’s rights
Traditionally, the SCC has placed the client at the heart of solicitor-client privilege. The Court has defined the privilege to be “a right that belongs to, and can only be waived by, a client” (Canada (National Revenue) v Thompson, 2016 SCC 21 at para 39). It has held that a provision that failed to properly uphold the client’s ability to ensure the adequate protection of his or her privilege violated s. 8 of the Charter, adding that “it cannot simply be assumed that the lawyer is the alter ego of the client” (Lavallee, Rackel & Heintz v Canada (Attorney General), 2002 SCC 61 at para 40).
Of course, the majority in Fox takes notice of its own jurisprudence on solicitor-client privilege (Fox, paras 34–40). Situating the SCC’s robust jurisprudence on privilege when deciding the first issue in Fox—whether a lawyer can pierce their client’s privileged communications because their innocence is at stake—is especially necessary to determine the exception’s impact on solicitor-client privilege more broadly. However, in a s. 24 analysis, the focus shifts: in the second stage of the s. 24 analysis, the focus is on the impact of the breach on the accused’s interests (Fox, para 111). Consequently, when determining the impact on the accused, it is interesting that the majority appeals to the rights of the client when the core issue is with the impact of the breach on Ms. Fox (Fox, para 114). While this point does not likely affect the majority’s reasoning in a material way—given that client protection was only one of the majority’s considerations at this stage—this Comment suggests that the appeal to client protection is misplaced at the second stage of the s. 24 analysis.
In closing, Fox illustrates the SCC’s answer to the question of when a lawyer may pierce their own client’s privilege to defend themselves. While the Court significantly expanded the innocence at stake exception to privilege, it also suggested that a breach of solicitor-client privilege can be so heinous that it can prevent the admission of even non-privileged communications in a criminal proceeding.