R. v. Brown (J.D.), (2002) 285 N.R. 201 (SCC)
| Judge | McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ. |
| Court | Supreme Court (Canada) |
| Case Date | March 28, 2002 |
| Jurisdiction | Canada (Federal) |
| Citations | (2002), 285 N.R. 201 (SCC);2002 SCC 32;50 CR (5th) 1;[2002] SCJ No 35 (QL);92 CRR (2d) 189;157 OAC 1;210 DLR (4th) 341;285 NR 201;[2002] 2 SCR 185;162 CCC (3d) 257 |
R. v. Brown (J.D.) (2002), 285 N.R. 201 (SCC)
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[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Temp. Cite: [2002] N.R. TBEd. MR.020
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)
(28635; 2002 SCC 32)
Indexed As: R. v. Brown (J.D.)
Supreme Court of Canada
McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ.
March 28, 2002.
Summary:
Baksh was stabbed to death. Benson told his girlfriend, Robertson, that he had killed Baksh and that he had confessed to his lawyers. Benson was investigated, but not charged. Rather, another man, Brown was charged with Baksh's murder. Brown sought production of files, documents and notes relating to communications between Benson and his lawyers concerning Benson's involvement in Baksh's death. The motions judge, applying the McClure test (S.C.C. 2001) for when solicitor-client privilege must give way to the accused's right to make full answer and defence, ordered production of one document and portions of other documents. Benson appealed directly to the Supreme Court of Canada.
The Supreme Court of Canada allowed the appeal and set aside the order for production. The court discussed and elaborated on the application of the McClure test (the threshold and two stages of the test), the timing of McClure applications, the scope of disclosure, the problem of wrongful convictions preceded by failed McClure applications, and the immunity of the privilege holder once privileged communications are disclsoed.
Civil Rights - Topic 3133
Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - Baksh was stabbed to death - Benson told his girlfriend, Robertson, that he had killed Baksh and that he had confessed to his lawyers - Benson was investigated, but not charged -Rather, another man, Brown was charged with Baksh's murder - Brown sought production of files, documents and notes relating to communications between Benson and his lawyers concerning Benson's involvement in Baksh's death (i.e., a McClure application) - The motions judge, applying the McClure test (S.C.C. 2001) for when solicitor-client privilege must give way to the accused's right to make full answer and defence, ordered production of one document and portions of other documents - Benson appealed - The Supreme Court of Canada allowed the appeal, holding 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." - See paragraphs 1 to 120.
Civil Rights - Topic 3133
Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - In R. v. McClure (S.C.C. 2001), the court set out a test (the McClure test) for when solicitor-client privilege would be required to yield in order to permit an accused to make full answer and defence to a criminal charge - The Supreme Court of Canada discussed and elaborated on the application of the McClure test (the threshold and two stages), the timing of McClure applications, the scope of disclosure, the problem of wrongful convictions preceded by failed McClure applications, and the immunity of the privilege holder - See paragraphs 26 to 104.
Civil Rights - Topic 3133
Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - The Supreme Court of Canada stated that in R. v. McClure (S.C.C. 2001), the court recognized that solicitor-client privilege was not absolute and could, in rare circumstances, be required to yield in order to permit an accused to make full answer and defence to a criminal charge - The court quoting McClure stated that "the occasions when the solicitor-client privilege yields are rare the test to be met is a stringent one" - The court stated further that "... 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'. It is intended to be a rare exception and used as a last resort." - See paragraph 3.
Civil Rights - Topic 3133
Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - In R. v. McClure (S.C.C. 2001), the court set out a test (the McClure test) for when solicitor-client privilege would be required to yield in order to permit an accused to make full answer and defence - The Supreme Court of Canada reiterated that the McClure test comprised a threshold question and a two-stage innocence at stake test - To satisfy the threshold, the accused must establish that the privileged information is not available from any other source and he is otherwise unable to raise a reasonable doubt - If the threshold is met, then the judge should proceed to the two stages of the innocence at stake test: Stage 1 - the accused has to demonstrate an evidentiary basis to conclude that a solicitor-client communication exists that could raise a reasonable doubt as to his guilt; and 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 accused's guilt - If the innocence at stake test is satisfied, the trial judge should order disclosure of the communications that are likely to raise a reasonable doubt - See paragraph 4.
Civil Rights - Topic 3133
Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - In R. v. McClure (S.C.C. 2001), the court set out a test (the McClure test) for when solicitor-client privilege would be required to yield in order to permit an accused to make full answer and defence - The Supreme Court of Canada reiterated the McClure test and discussed the issue of privilege holder immunity where privileged information was ordered to be disclosed under the McClure test - The court stated 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." - The privilege holder's communications and any evidence derived therefrom cannot be used in a subsequent case against the privilege holder (i.e., the privilege holder was entitled to use and derivative use immunity) - However, the court held that disclosure of privileged information under a McClure application did not give rise to "transactional" immunity (i.e., immunity from any future criminal prosecution for the crimes which are the subject of the solicitor-client communications) - See paragraphs 88 to 104.
Civil Rights - Topic 3133
Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - In R. v. McClure (S.C.C. 2001), the court set out a test (the McClure test) for when solicitor-client privilege must yield to the accused's right to make full answer and defence - The McClure test included a threshold question and a two-stage innocence at stake test - If the threshold was met, Stage 1 required the accused to demonstrate an evidentiary basis for concluding that a solicitor-client communication existed that could raise a reasonable doubt as to guilt; and Stage 2 required the judge, if such an evidentiary basis existed, to examine the communication to determine whether, in fact, it was likely to raise a reasonable doubt - If the test was satisfied, the judge should order disclosure of the communications that were likely to raise a reasonable doubt - The Supreme Court of Canada discussed whether amplification of the record between Stages 1 and 2 was permissible - The court noted that the disclosure under McClure was not limited to written communications contained in the file but applied equally to oral communications and discussed how disclosure of oral communications should be approached - See paragraphs 60 to 65.
Civil Rights - Topic 3133
Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - In R. v. McClure (S.C.C. 2001), the court set out a test (the McClure test) for when solicitor-client privilege must yield to the accused's right to make full answer and defence - The McClure test included a threshold question and a two-stage innocence at stake test, which if satisfied required the trial judge to order disclosure of certain privileged communications (i.e., those that were likely to raise a reasonable doubt) - The Supreme Court of Canada discussed the scope of disclosure - The court held that using a process similar to that outlined by L'Heureux-Dubé, J., in R. v. O'Connor (S.C.C.), the judge should order production of only those communications that are necessary to allow an accused to raise a reasonable doubt as to his guilt - See paragraphs 73 to 77.
Civil Rights - Topic 3133
Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - In R. v. McClure (S.C.C. 2001), the court set out a test for when solicitor-client privilege must yield to the accused's right to make full answer and defence - The Supreme Court of Canada discussed the scope of disclosure of privileged communications on a successful McClure application, holding that the judge should order production of only those communications that are necessary to allow an accused to raise a reasonable doubt as to his guilt - The court stated that "... 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." - See paragraph 77.
Civil Rights - Topic 3133
Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - In R. v. McClure (S.C.C. 2001), the court set out a test for when solicitor-client privilege must yield to the accused's right to make full answer and defence - The Crown argued that any information disclosed to an accused following a McClure application should also be disclosed to the Crown - The Supreme Court of Canada rejected this proposition - See paragraphs 78 to 87 - The court stated that "... 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." - See paragraph 85.
Civil Rights - Topic 3133
Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - In R. v. McClure (S.C.C. 2001), the court recognized that solicitor-client privilege was not absolute and could, in rare circumstances, be required to yield to the accused's right to make full answer and defence - The McClure test comprised a threshold question and a two-stage innocence at stake test - To satisfy the threshold, the accused had to establish that the privileged "information" was not available from any other source and he was otherwise unable to raise a reasonable doubt - The Supreme Court of Canada discussed what was meant by "information" in the context of the threshold test - See paragraphs 30 to 45.
Civil Rights - Topic 3133
Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - Baksh was stabbed to death - Benson told his girlfriend, Robertson, that he had killed Baksh and that he had confessed to his lawyers - Benson was investigated, but not charged -Rather, another man, Brown was charged with Baksh's murder - Brown sought production of certain files, documents and notes relating to communications between Benson and his lawyers (i.e., a McClure application) - The motions judge ordered production of certain privileged material - An issue arose respecting whether the threshold test in McClure was met where the information was available from another source (i.e., Robertson) - The Supreme Court of Canada set aside the disclosure order - The motions judge should have held a voir dire to determine the admissibility of Robertson's statement before concluding that the requested information was not available from any other source - If it was found to be admissible, then the application would fail on the threshold question - Further, 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 there was no waiver and Robertson's testimony was inadmissible should the motions judge have proceeded to the other elements of the McClure test - See paragraphs 30 to 45.
Civil Rights - Topic 3133
Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - Baksh was stabbed to death - Benson told his girlfriend, Robertson, that he had killed Baksh and that he had confessed to his lawyers - Benson was investigated, but not charged -Rather, another man, Brown was charged with Baksh's murder - Brown sought production of certain privileged files, documents and notes relating to communications between Benson and his lawyers (i.e., a McClure application) - The motions judge ordered production of certain material - The motions judge considered that with respect to the second element of the threshold test in McClure that judges had to consider whether there was, in the particular circumstances of the case, a genuine danger of wrongful conviction and in this case there was - The Supreme Court of Canada held that the motions judge erred in his conclusion on this issue and in his application of the threshold test to the facts of this case - The court noted that although it was too early to decide, it might be possible for Brown to raise a reasonable doubt as to his guilt by other means - See paragraphs 46 to 51.
Civil Rights - Topic 3133
Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - Baksh was stabbed to death - Benson told his girlfriend, Robertson, that he had killed Baksh and that he had confessed to his lawyers - Benson was investigated, but not charged -Rather, another man, Brown was charged with Baksh's murder after a jailhouse informant claimed to have overheard a conversation between Brown and another inmate - Brown sought production of files, documents and notes relating to communications between Benson and his lawyers concerning Benson's involvement in Baksh's death (i.e., a McClure application) - A motions judge allowed the application ordering disclosure of certain material - The Supreme Court of Canada set aside the motions judge's decision holding that it was premature - The court noted that the In-Custody Informer Committee of the Attorney General's office had not ruled as to whether the informant would be called to give evidence, but rather was waiting for a decision on the McClure application before it made its final decision on the informant's testimony - The court stated that this was 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 - See paragraph 50.
Civil Rights - Topic 3133
Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - In R. v. McClure (S.C.C. 2001), the court set out a test (the McClure test) for when solicitor-client privilege would be required to yield in order to permit an accused to make full answer and defence to a criminal charge - The Supreme Court of Canada, per Arbour, J. (L'Heureux-Dubé, J., concurring), stated that "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." - See paragraph 117 - Arbour, J., stated further that "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." - See paragraph 120.
Civil Rights - Topic 3160
Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to remain silent and protection against self-incrimination (Charter, s. 7) - [See fifth Civil Rights - Topic 3133 ].
Civil Rights - Topic 4462
Protection against self-incrimination - Use of incriminating evidence in other proceedings - Derivative evidence - [See fifth Civil Rights - Topic 3133 ].
Criminal Law - Topic 128
Rights of accused - Right to make full answer and defence - [See all Civil Rights - Topic 3133 ].
Criminal Law - Topic 129
Rights of accused - Right to discovery or production - [See all Civil Rights - Topic 3133 ].
Criminal Law - Topic 2966
Jurisdiction - Appeals - Interlocutory orders - Bars - The Supreme Court of Canada noted that ss. 674 and 675 of the Criminal Code precluded intermediate courts of appeal of the provinces from considering appeals from interlocutory orders - Rather in such cases, an application to appeal the final order would have to be made directly to the Supreme Court under s. 40(1) of the Supreme Court Act - The Supreme Court of Canada stated that "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. 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." - See paragraphs 107 to 110.
Criminal Law - Topic 4825
Appeals - Indictable offences - Right of appeal - From an interlocutory decision - [See Criminal Law - Topic 2966 ].
Criminal Law - Topic 4912
Appeals - Indictable offences - Procedure -Notice of appeal or application for leave to appeal - Interlocutory orders - [See Criminal Law - Topic 2966 ].
Criminal Law - Topic 9081
Appeals to Supreme Court of Canada - Appeals with leave - General - [See Criminal Law - Topic 2966 ].
Evidence - Topic 4253.3
Witnesses - Privilege - Lawyer-client communications - Loss of privilege - To permit full answer and defence (incl. McClure applications) - [See all Civil Rights - Topic 3133 ].
Cases Noticed:
R. v. McClure (D.E.), [2001] 1 S.C.R. 445; 266 N.R. 275; 142 O.A.C. 201, appld. [paras. 1, 112].
R. v. Williams (1985), 7 O.A.C. 201; 50 O.R.(2d) 321 (C.A.), refd to. [paras. 41, 115].
Chambers v. Mississippi (1973), 410 U.S. 284 (U.S. Sup. Ct.), refd to. [para. 41].
R. v. Brooks (F.A.), [2000] 1 S.C.R. 237; 250 N.R. 103; 129 O.A.C. 205, refd to. [para. 50].
R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, refd to. [para. 74].
Jones v. Smith, [1999] 1 S.C.R. 455; 236 N.R. 201; 120 B.C.A.C. 161; 196 W.A.C. 161, refd to. [para. 76].
R. v. Boucher, [1955] S.C.R. 16, refd to. [para. 78].
R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161, refd to. [para. 82].
Thomson Newspapers Ltd. v. Director of Investigation and Research, Combines Investigation Act et al., [1990] 1 S.C.R. 425; 106 N.R. 161; 39 O.A.C. 161, refd to. [para. 91].
R. v. M.B.P., [1994] 1 S.C.R. 555; 165 N.R. 321; 70 O.A.C. 161, refd to. [para. 92].
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, refd to. [para. 92].
R. v. Fitzpatrick (B.), [1995] 4 S.C.R. 154; 188 N.R. 248; 65 B.C.A.C. 1; 106 W.A.C. 1, refd to. [para. 93].
R. v. White (J.K.), [1999] 2 S.C.R. 417; 240 N.R. 1; 123 B.C.A.C. 161; 201 W.A.C. 161, refd to. [para. 93].
R. v. R.J.S., [1995] 1 S.C.R. 451; 177 N.R. 81; 78 O.A.C. 161, refd to. [para. 97].
British Columbia Securities Commission v. Branch and Levitt, [1995] 2 S.C.R. 3; 180 N.R. 241; 60 B.C.A.C. 1; 99 W.A.C. 1, refd to. [para. 98].
R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1, refd to. [para. 100].
R. v. Burlingham (T.W.), [1995] 2 S.C.R. 206; 181 N.R. 1; 58 B.C.A.C. 161; 96 W.A.C. 161, refd to. [para. 101].
R. v. Calder (M.), [1996] 1 S.C.R. 660; 194 N.R. 52; 90 O.A.C. 18, refd to. [para. 102].
Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81, refd to. [para. 106].
L.L.A. v. Beharriell, [1995] 4 S.C.R. 536; 190 N.R. 329; 88 O.A.C. 241, refd to. [para. 106].
L.L.A. v. A.B. - see L.L.A. v. Beharriell.
R. v. Adams (J.R.), [1995] 4 S.C.R. 707; 190 N.R. 161; 178 A.R. 161; 110 W.A.C. 161, refd to. [para. 106].
R. v. Mentuck (C.G.) (2001), 277 N.R. 160; 163 Man.R.(2d) 1; 269 W.A.C. 1 (S.C.C.), refd to. [para. 106].
R. v. Dersch (W.W.) et al., [1990] 2 S.C.R. 1505; 116 N.R. 340; 43 O.A.C. 256; 36 Q.A.C. 258, refd to. [para. 116].
Dersch v. Canada (Attorney General) - see R. v. Dersch (W.W.) et al.
R. v. Rowbotham et al. (1988), 25 O.A.C. 321; 41 C.C.C.(3d) 1 (C.A.), refd to. [para. 116].
R. v. Finta (1992), 53 O.A.C. 1; 73 C.C.C.(3d) 65 (C.A.), affd. [1994] 1 S.C.R. 701; 165 N.R. 1; 70 O.A.C. 241, refd to. [para. 116].
R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353, refd to. [para. 117].
R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1, refd to. [para. 118].
Statutes Noticed:
Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 15].
Authors and Works Noticed:
Berger, Mark, Taking the Fifth: The Supreme Court and the Privilege Against Self-Incrimination (1980), p. 70 [para. 103].
Proulx, Michel, and Layton, David, Ethics and Canadian Criminal Law (2001), p. 183 [para. 31].
Counsel:
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).
Solicitors of Record:
Richard G. Litkowski, Toronto, Ontario, for the appellant;
Rosen, Wasser, Toronto, Ontario, for the respondent Jason D. Brown;
The Ministry of the Attorney General, Toronto, Ontario, for the respondent Her Majesty the Queen;
Ruby & Edwardh, Toronto, Ontario, for the intervener the Federation of Law Societies of Canada;
Anil K. Kapoor, Toronto, Ontario, for the interveners Todd Ducharme and Peter Copeland;
Skurka & Pringle, Toronto, Ontario, for the intervener the Criminal Lawyers' Association (Ontario).
This appeal was heard on January 23, 2002, by McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ., of the Supreme Court of Canada.
The decision of the court was delivered on March 28, 2002, when the following opinions were filed:
Major, J. (McLachlin, C.J.C., Gonthier, Iacobucci, Bastarache, Binnie and LeBel, JJ., concurring) - see paragraphs 1 to 111;
Arbour, J. (L'Heureux-Dubé, J., concurring) - see paragraphs 112 to 120.
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