Jones v. Smith, (1999) 236 N.R. 201 (SCC)

• Judge: Lamer, C.J.C., L'Heureux-Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie, JJ.
• Court: Supreme Court (Canada)
• Case Date: March 25, 1999
• Jurisdiction: Canada (Federal)
• Citations: (1999), 236 N.R. 201 (SCC);169 DLR (4th) 385;120 BCAC 161;[1999] 1 SCR 455;132 CCC (3d) 225;[1999] 8 WWR 364;1999 CanLII 674 (SCC);236 NR 201;41 WCB (2d) 319;60 CRR (2d) 46;[1999] SCJ No 15 (QL);62 BCLR (3d) 209;JE 99-723;22 CR (5th) 203;[1999] CarswellBC 590;86 ACWS (3d) 977;196 WAC 161

Jones v. Smith (1999), 236 N.R. 201 (SCC)

MLB Headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

....................

Temp. Cite: [1999] N.R. TBEd. MR.015

James Jones (appellant) v. John Smith (respondent) and Southam Inc. (intervenor)

(26500)

Indexed As: Jones v. Smith

Supreme Court of Canada

Lamer, C.J.C., L'Heureux-Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie, JJ.

March 25, 1999.

Summary:

The accused was charged with sexually assaulting a prostitute. His counsel referred him to a psychiatrist for assessment to aid in the preparation of a defence or for use in sentencing if the accused pleaded guilty. Counsel advised the accused that the consul­tation was privileged. The accused disclosed to the psychiatrist his detailed plans for further sexually sadistic murders of prosti­tutes in the Downtown Eastside of Vancouver. The psychiatrist informed coun­sel that the accused was a dangerous person who would likely commit further offences unless treated. The accused pleaded guilty to aggravated assault. When, prior to sen­tencing, the psychiatrist learned that his opinion would not be placed before the sentencing judge he sought a declaration that he was entitled to disclose the information.

The British Columbia Supreme Court, in an unreported judgment, ruled that the public safety exception to the law of solici­tor-client privilege and doctor-patient confi­dentiality released the psychiatrist from his duty of confidentiality and placed him under an obligation to disclose to the police and the Crown both the accused's statements to him and the psychiatrist's opinion. The accused appealed.

The British Columbia Court of Appeal, in an unreported judgment, allowed the appeal in part. The court varied the mandatory order to one permitting the psychiatrist to disclose the information to the police and Crown. The court also directed that pseudonyms be used, proceedings be heard in camera and the file remain sealed pending further order. The order was stayed to permit the accused to further appeal to the Supreme Court of Canada, which he did.

The Supreme Court of Canada, Lamer, C.J.C., Major and Binnie, JJ., dissenting, dismissed the appeal, with the exception of ordering the file unsealed and removing the ban on publication, except for those portions of the psychiatrist's affidavit which did not fall within the public safety exception. Both the accused's confession and the psychia­trist's opinion could be disclosed. Major, J. (Lamer, C.J.C., and Binnie, J., concurring) agreed that some warning to authorities was necessary, but that it should be limited to disclosure of the psychiatrist's opinion. Conscriptive evidence such as the accused's confession should not be disclosed.

Evidence - Topic 4241

Witnesses - Privilege - Lawyer-client communications - Privilege - General - The Supreme Court of Canada discussed the purpose and nature of solicitor-client privilege - See paragraphs 10 to 16.

Evidence - Topic 4243

Witnesses - Privilege - Lawyer-client communications - Privilege - Communi­cations with third party at lawyer's request - The Supreme Court of Canada, per Major, J., stated that "client communi­cations with third-party experts retained by counsel for the purpose of preparing their defence are protected by solicitor-client privilege" - See paragraph 81.

Evidence - Topic 4243

Witnesses - Privilege - Lawyer-client communications - Privilege - Communi­cations with third party at lawyer's request - [See first and third Evidence - Topic 4253.1 ].

Evidence - Topic 4251

Witnesses - Privilege - Lawyer-client communications - Loss of privilege - Communications respecting crime - The Supreme Court of Canada restated that "there are certain exceptions to the prin­ciple of the confidentiality of solicitor-client communications, however. Thus communications that are in themselves criminal or that are made with a view to obtaining legal advice to facilitate the commission of a crime will not be privi­leged" - Communications that are criminal in themselves (e.g. a fraudulent legal aid application) or that are intended to obtain legal advice to facilitate criminal activities are not privileged - See paragraphs 20 to 21.

Evidence - Topic 4252

Witnesses - Privilege - Lawyer-client communications - Loss of privilege - Allegation of fraud - [See Evidence - Topic 4251 ].

Evidence - Topic 4253.1

Witnesses - Privilege - Lawyer-client communications - Loss of privilege - Public safety exception - The Supreme Court of Canada held that as a general rule solicitor-client privilege must be set aside on the basis of the public safety exception where "there is an imminent risk of serious bodily harm or death to an identifiable person or group. ... The facts must be carefully considered to determine whether the three factors of seriousness, clarity and imminence indicate that the privilege can­not be maintained. Different weights will be given to each factor in any particular case. ... disclosure should be limited so that it includes only the information nec­es­sary to protect public safety." - The court noted that "disclosure of planned future crimes without an element of viol­ence would be an insufficient reason to set aside solicitor-client privilege because of fears of public safety" and that "serious psychologi­cal harm may constitute serious bodily harm" - See paragraphs 40 to 51.

Evidence - Topic 4253.1

Witnesses - Privilege - Lawyer-client communications - Loss of privilege - Public safety exception - The Supreme Court of Canada discussed the extent of disclosure of privileged information where that privilege was set aside under the public safety exception - The court stated that "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" - See paragraph 52.

Evidence - Topic 4253.1

Witnesses - Privilege - Lawyer-client communications - Loss of privilege - Public safety exception - The accused was charged with sexually assaulting a prosti­tute - His counsel referred him to a psy­chiatrist for assessment to aid in the preparation of a defence or for use in sentencing if the accused pleaded guilty - Counsel advised the accused that the con­sultation was privileged - The accused confessed to the psychiatrist his detailed plans for further sexually sadistic murders of prostitutes in the Downtown Eastside of Vancouver - The psychiatrist opined that the accused was a dangerous person who would likely commit further offences unless treated and wished to disclose the information to police and the Crown - The accused claimed solicitor-client privilege -The Supreme Court of Canada affirmed that solicitor-client privilege was set aside under the public safety exception - The accused posed a clear, serious and immi­nent danger to subject a clearly identified group to death or serious bodily harm - The court held that disclosure was limited to those portions of the psychiatrist's affi­davit which indicated that there was an imminent risk of death or serious bodily harm to an identifiable group comprising prostitutes - Major, J. (Lamer, C.J.C., and Binnie, J., concurring) agreed that the public safety exception applied, but would have limited disclosure to the psychiatrist's opinion, not the accused's confession - See paragraphs 53 to 61, 95 to 102.

Evidence - Topic 4253.3

Witnesses - Privilege - Lawyer-client communications - Loss of privilege - Full answer and defence exception - The Supreme Court of Canada stated that "so­licitor-client privilege must yield to the right of accused persons to fully defend themselves" - The court agreed that "no rule of policy requires the continued exis­tence of the privilege in criminal cases when the person claiming the privilege no longer has any interest to protect, and when maintaining the privilege might screen from the jury information which would assist the accused" - The court disagreed with a House of Lords decision that solicitor-client privilege could not be set aside even when to do so would permit an accused to make full answer and defence to a criminal charge - See para­graphs 18 to 19.

Cases Noticed:

Anderson v. Bank of British Columbia (1876), 2 Ch. D. 644 (C.A.), refd to. [para. 11].

R. v. Fosty and Gruenke, [1991] 3 S.C.R. 263; 130 N.R. 161; 75 Man.R.(2d) 112; 6 W.A.C. 112; 8 C.R.(4th) 368; 67 C.C.C.(3d) 289; 7 C.R.R.(2d) 108, refd to. [para. 13].

Solosky v. Canada, [1980] 1 S.C.R. 821; 30 N.R. 380; 16 C.R.(3d) 294; 105 D.L.R.(3d) 745; 50 C.C.C.(2d) 495, refd to. [para. 14].

Descôteaux et al. v. Mierzwinski et al., [1982] 1 S.C.R. 860; 44 N.R. 462; 141 D.L.R.(3d) 590; 70 C.C.C.(2d) 385, refd to. [para. 15].

R. v. Dunbar and Logan (1982), 68 C.C.C.(2d) 13 (Ont. C.A.), refd to. [para. 18].

R. v. Derby Magistrates' Court; Ex Parte B., [1995] 4 All E.R. 526; 189 N.R. 199 (H.L.), disagreed with [para. 19].

R. v. Seaboyer and Gayme, [1991] 2 S.C.R. 577; 128 N.R. 81; 48 O.A.C. 81; 66 C.C.C.(3d) 321; 7 C.R.(4th) 117; 6 C.R.R.(2d) 35, refd to. [para. 20].

L.L.A. v. Beharriell, [1995] 4 S.C.R. 536; 190 N.R. 329; 88 O.A.C. 241, refd to. [para. 20].

Tarasoff v. University of California (1976), 551 P.2d 334 (Cal.), refd to. [para. 26].

Thompson v. Alameda (County) (1980), 614 P.2d 728 (Cal.), refd to. [para. 30].

Brady v. Hopper (1983), 570 F. Supp. 1333 (Dist. Colo.), refd to. [para. 32].

W. v. Egdell, [1990] 1 All E.R. 835 (C.A.), refd to. [para. 35].

R. v. McCraw, [1991] 3 S.C.R. 72; 128 N.R. 299; 49 O.A.C. 47; 66 C.C.C.(3d) 517; 7 C.R.(4th) 314, refd to. [para. 49].

Director of Investigation and Research v. Shell Canada Ltd. (1975), 22 C.C.C.(2d) 70 (F.C.A.), refd to. [para. 76].

R. v. Hebert, [1990] 2 S.C.R. 151; 110 N.R. 1; [1990] 5 W.W.R. 1; 57 C.C.C.(3d) 1; 77 C.R.(3d) 145; 49 C.R.R. 114; 47 B.C.L.R.(2d) 1, refd to. [para. 78].

R. v. Jones (S.), [1994] 2 S.C.R. 229; 166 N.R. 321; 43 B.C.A.C. 241; 69 W.A.C. 241; 89 C.C.C.(3d) 353, refd to. [para. 78].

R. v. Perron, [1990] R.J.Q. 752; 54 C.C.C.(3d) 109 (Que. C.A.), refd to. [para. 81].

R. v. C.K.L. (1987), 62 C.R. 131 (Ont. Dist. Ct.), refd to. [para. 81].

R. v. Poslowsky, [1996] B.C.J. No. 2550 (Prov. Ct.), refd to. [para. 81].

R. v. King, [1983] 1 All E.R. 929 (C.A.), refd to. [para. 81].

R. v. Ward (1981), 3 A. Crim. R. 171 (N.S.W. Ct. Cr. App.), refd to. [para. 81].

San Francisco (City and County) v. Superior Court (1951), 231 P.2d 26 (Cal. S.C.), refd to. [para. 82].

Calcraft v. Guest, [1898] 1 Q.B. 759 (C.A.), refd to. [para. 85].

Harmony Shipping Co. S.A. v. Davis, [1979] 3 All E.R. 177 (C.A.), refd to. [para. 86].

Lyell v. Kennedy (No. 2) (1883), 9 App. Cas. 81 (H.L.), refd to. [para. 88].

Susan Hosiery Ltd. v. Minister of National Defence, [1969] 2 Ex. C.R. 27, refd to. [para. 88].

Thorson v. Jones (1973), 38 D.L.R.(3d) 312 (B.C.S.C.), refd to. [para. 89].

A.M. v. Ryan, [1997] 1 S.C.R. 157; 207 N.R. 81; 85 B.C.A.C. 81; 138 W.A.C. 81, refd to. [para. 92].

R. v. M.B.P., [1994] 1 S.C.R. 555; 165 N.R. 321; 70 O.A.C. 161, refd to. [para. 97].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 99].

Authors and Works Noticed:

British Columbia, Law Society, Pro­fessional Conduct Handbook, c. 5, s. 12 [para. 41].

The Future Crime or Tort Exception to Communications Privileges (1964), 77 Harv. L. Rev. 730, p. 732 [para. 96].

Counsel:

Leslie J. Mackoff, for the appellant;

Christopher E. Hinkson, Q.C., and Eliza­beth A. Campbell, for the respondent;

Paul B. Schabas and Matthew J. Halpin, for the intervenor.

Solicitors of Record:

Mackoff & Stevens, Vancouver, B.C., for the appellant;

Harper Grey Easton, Vancouver, B.C., for the respondent;

Blake, Cassels & Graydon, Toronto, Ontario, for the intervenor.

This appeal was heard on October 8, 1998, before Lamer, C.J.C., L'Heureux-Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie, JJ., of the Supreme Court of Canada.

On March 25, 1999, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:

Cory, J. (L'Heureux-Dubé, Gonthier, McLachlin, Iacobucci and Bastarache, JJ., concurring) - see paragraphs 1 to 71;

Major, J. (Lamer, C.J.C., and Binnie, J., concurring), dissenting - see para­graphs 72 to 105.