R. v. McClure (D.E.), (2001) 142 O.A.C. 201 (SCC)

• Judge: McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarche, Binnie, Arbour and LeBel, JJ.
• Court: Supreme Court of Canada
• Case Date: October 05, 2000
• Jurisdiction: Canada (Federal)
• Citations: (2001), 142 O.A.C. 201 (SCC);2001 SCC 14;151 CCC (3d) 321;[2001] CarswellOnt 496;266 NR 275;80 CRR (2d) 217;[2001] 1 SCR 445;[2001] ACS no 13;48 WCB (2d) 514;JE 2001-564;40 CR (5th) 1;195 DLR (4th) 513;142 OAC 201;EYB 2001-22807;[2001] SCJ No 13 (QL)

R. v. McClure (D.E.) (2001), 142 O.A.C. 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]

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Temp. Cite: [2001] O.A.C. TBEd. MR.010

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)

(27109; 2001 SCC 14)

Indexed As: R. v. McClure (D.E.)

Supreme Court of Canada

McLachlin, C.J.C., L'Heureux-Dubé,  Gonthier, Iacobucci, Major, Bastarche,  Binnie, Arbour and LeBel, JJ.

March 2, 2001.

Summary:

The accused was a teacher and librarian at a public school attended by J.C. in the 1970s. The accused was charged with sexual offences against former students, including J.C. J.C. also brought a civil action against the accused and the North York Board of Education. The accused sought production of J.C.'s civil litigation file to determine the nature of the allegations first made by J.C. to his solicitor and to assess the extent of J.C.'s motive to fabricate or exaggerate the incidents of abuse.

The Ontario Court (General Division) granted the accused access to J.C.'s litigation file. Hawkins, J., concluded that the accused should be entitled to question J.C.'s motive in an attempt to show that J.C.'s complaint in the criminal proceeding was made merely to bolster the civil action. As J.C. was not a party in the criminal trial, he could not appeal the interlocutory order for production of his private records. J.C. applied directly to the Supreme Court of Canada pursuant to s. 40(1) of the Supreme Court Act for leave to appeal the final order ordering production of his litigation file. The order for production was stayed pending appeal (see [1999] O.J. No. 1405).

The Supreme Court of Canada allowed the appeal and set aside the order for production of J.C.'s litigation file.

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 some limited circumstances the solicitor-client privilege may yield to allow an accused to make full answer and defence and that the appropriate test to determine whether to set aside solicitor-client privilege was the innocence at stake test - The court stated that "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. 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" - See paragraphs 46 to 48.

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 some limited circumstances the solicitor-client privilege may yield to allow an accused to make full answer and defence and that the appropriate test to determine whether to set aside solicitor-client privilege was the innocence at stake test - The court stated that "the innocence at stake test is applied in two stages ... 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 ... 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 ... 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 claim" - See paragraphs 50 to 51.

Criminal Law - Topic 128

Rights of accused - Right to make full answer and defence - [See both Civil Rights - Topic 3133 ].

Criminal Law - Topic 129

Rights of accused - Right to discovery or production - [See both Criminal Law - Topic 5382 ].

Criminal Law - Topic 5382

Evidence and witnesses - Documents and reports - Legal records of witness - The accused teacher and librarian was charged with sexual offences against former students, including J.C. - J.C. also brought a civil action against the accused and a Board of Education - The accused sought production of J.C.'s civil litigation file to determine the nature of the allegations first made by J.C. to his solicitor and to assess the extent of J.C.'s motive to fabricate or exaggerate incidents of abuse - The trial judge granted the accused access to J.C.'s litigation file - The Supreme Court of Canada held that the litigation file should not have been produced to the defence - The trial judge erred in using the "O'Connor" test for the production of third party confidential therapeutic records when he should have used the innocence at stake test - See paragraph 63.

Criminal Law - Topic 5382

Evidence and witnesses - Documents and reports - Legal records of witness - The accused teacher and librarian was charged with sexual offences against former students, including J.C. - J.C. also brought a civil action against the accused and a Board of Education - The accused sought production of J.C.'s civil litigation file to determine the nature of the allegations first made by J.C. to his solicitor and to assess the extent of J.C.'s motive to fabricate or exaggerate incidents of abuse - The trial judge granted the accused access to J.C.'s litigation file - The Supreme Court of Canada held that the litigation file should not have been produced to the defence - The first stage of the innocence at stake test was not met where there was no evidence that the information sought could raise a reasonable doubt as to the accused's guilt - Also, the accused would have been able to raise the issue of J.C.'s motive to fabricate events for the sake of a civil action from another source by simply pointing out the sequence of events and the fact that a civil action was initiated - See paragraphs 64 to 65.

Evidence - Topic 4253.3

Witnesses - Privilege - Lawyer-client communications - Loss of privilege - To permit full answer and defence - [See both Civil Rights - Topic 3133 ].

Cases Noticed:

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; [1996] 2 W.W.R. 153; 103 C.C.C.(3d) 1; 44 C.R.(4th) 1; 29 W.C.B.(2d) 152, refd to. [para. 9].

Solosky v. Canada, [1980] 1 S.C.R. 821; 30 N.R. 380; 105 D.L.R.(3d) 745; 50 C.C.C.(2d) 495, refd to. [para. 19].

R. v. Colvin (1970), 1 C.C.C.(2d) 8 (Ont. H.C.), refd to. [para. 22].

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. 23].

Goodman Estate v. Geffen, [1991] 2 S.C.R. 353; 127 N.R. 241; 125 A.R. 81; 14 W.A.C. 81; 81 D.L.R.(4th) 211; [1991] 5 W.W.R. 389; 80 Alta. L.R. (2d) 293; 42 E.T.R. 97, refd to. [para. 24].

Jones v. Smith, [1999] 1 S.C.R. 455; 236 N.R. 201; 120 B.C.A.C. 161; 196 W.A.C. 161; 132 C.C.C.(3d) 225, refd to. [para. 24].

R. v. Gruenke, [1991] 3 S.C.R. 263; 130 N.R. 161; 75 Man.R.(2d) 112; 6 W.A.C. 112; 67 C.C.C.(3d) 289, refd to. [para. 27].

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; 83 D.L.R.(4th) 193, refd to. [para. 39].

R. v. Leipert (R.D.), [1997] 1 S.C.R. 281; 207 N.R. 145; 85 B.C.A.C. 162; 138 W.A.C. 162; 112 C.C.C.(3d) 385, refd to. [para. 40].

R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271; 37 C.C.C.(3d) 1; 61 C.R.(3d) 1; 44 D.L.R.(4th) 193, refd to. [para. 40].

R. v. Mills (B.J.), [1999] 3 S.C.R. 668; 248 N.R. 101; 139 C.C.C.(3d) 321; 180 D.L.R.(4th) 1, refd to. [para. 44].

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81; 94 C.C.C.(3d) 289; 120 D.L.R.(4th) 12; 25 C.R.R.(2d) 1; 34 C.R.(4th) 269, refd to. [para. 66].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 3].

Authors and Works Noticed:

Auburn, Jonathan, Legal Professional Privilege: Law and Theory (2000), pp. 6 to 7 [para. 21].

Orkin, Mark M., Legal Ethics: A Study of Professional Conduct (1957), p. 84 [para. 37].

Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (2nd Ed. 1999), p. 728 [para. 20].

Wigmore, John Henry, Evidence in Trials at Common Law (1961), vol. 8, pp. 527 [para. 29]; 543 [para. 18]; 554 [para. 36].

Counsel:

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).

Solicitors of Record:

Anthony Moustacalis, Toronto, Ontario, for the appellant;

The Ministry of the Attorney General, Toronto, Ontario, for the respondent, Her Majesty the Queen;

Maureen Forestell, Toronto, Ontario, for the respondent, McClure;

Rosen Wasser, Toronto, Ontario, for the intervener, The Advocates' Society;

Skurka & Pringle, Toronto, Ontario, for the intervener, the Criminal Lawyers' Association (Ontario).

This appeal was heard on October 5, 2000, before McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ., of the Supreme Court of Canada. The following judgment of the Supreme Court of Canada was delivered in both official languages on March 2, 2001, by Major, J.