Smith v. Jones

Smith v. Jones
Collection
Supreme Court Judgments
Date
1999-03-25
Report
[1999] 1 SCR 455
Case number
26500
Judges
Lamer, Antonio; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil
On appeal from
British Columbia
Subjects
Courts
Evidence
Notes
SCC Case Information: 26500
Decision Content
Smith v. Jones, [1999] 1 S.C.R. 455
James Jones Appellant
v.
John Smith Respondent
and
Southam Inc. Intervener
Indexed as: Smith v. Jones
File No.: 26500.
1998: October 8; 1999: March 25.
Present: Lamer C.J. and L’Heureux‑Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.
on appeal from the court of appeal for british columbia
Privilege ‑‑ Solicitor‑client privilege ‑‑ Public safety exception ‑‑ Psychiatrist’s report and opinion ‑‑ Psychiatrist retained by defence counsel to assist in preparing accused’s defence ‑‑ Psychiatrist’s report indicating that accused posed continuing danger to society ‑‑ Accused pleading guilty and defence counsel informing psychiatrist that sentencing judge would not be informed of his concerns about accused ‑‑ Circumstances and factors to be considered in determining whether solicitor‑client privilege should be set aside in interest of protecting public safety.
Courts ‑‑ Proceedings ‑‑ Openness ‑‑ Action on exception to solicitor‑client privilege ‑‑ Court file sealed ‑‑ Hearing in Supreme Court public but members of press and public subject to publication ban ‑‑ Supreme Court holding public safety exception to solicitor‑client privilege applicable ‑‑ Publication ban lifted and file unsealed, except parts of affidavit subject to solicitor‑client privilege which do not fall within public safety exception.
An accused was charged with aggravated sexual assault on a prostitute. His counsel referred him to a psychiatrist hoping that it would be of assistance in the preparation of the defence or with submissions on sentencing in the event of a guilty plea. Counsel informed the accused that the consultation was privileged in the same way as a consultation with him would be. During his interview with the psychiatrist, the accused described in considerable detail his plan to kidnap, rape and kill prostitutes. The psychiatrist informed defence counsel that in his opinion the accused was a dangerous individual who would, more likely than not, commit future offences unless he received sufficient treatment. The accused later pled guilty to the included offence of aggravated assault. The psychiatrist phoned defence counsel to inquire about the status of the proceedings and learned that his concerns about the accused would not be addressed in the sentencing hearing. The psychiatrist commenced this action for a declaration that he was entitled to disclose the information he had in his possession in the interests of public safety. He filed an affidavit describing his interview with the accused and his opinion based upon the interview. The trial judge ruled that the public safety exception to the solicitor‑client privilege and doctor‑patient confidentiality released the psychiatrist from his duties of confidentiality and concluded that he was under a duty to disclose to the police and the Crown both the statements made by the accused and his opinion based upon them. The Court of Appeal allowed the accused’s appeal but only to the extent that the mandatory order was changed to one permitting the psychiatrist to disclose the information to the Crown and police. Since the beginning of these proceedings at first instance, the file has been sealed. This Court dismissed a motion for a hearing in camera but the members of the press and of the public present at the hearing were subject to a publication ban.
Held (Lamer C.J. and Major and Binnie JJ. dissenting): The appeal should be dismissed and the order of the Court of Appeal is affirmed subject to the following directive. The file will be unsealed and the ban on the publication of the contents of the file is removed, except for those parts of the psychiatrist’s affidavit which do not fall within the public safety exception.
Per L’Heureux-Dubé, Gonthier, Cory, McLachlin, Iacobucci and Bastarache JJ.: Both parties made their submissions on the basis that the psychiatrist’s report was protected by solicitor‑client privilege, and it should be considered on that basis. The solicitor‑client privilege is a principle of fundamental importance to the administration of justice. It is the highest privilege recognized by the courts. However, despite its importance, the privilege is not absolute and remains subject to limited exceptions, including the public safety exception. While only a compelling public interest can justify setting aside solicitor‑client privilege, danger to public safety can, in appropriate circumstances, provide such a justification.
Three factors should be taken into consideration in determining whether public safety outweighs solicitor‑client privilege: (1) Is there a clear risk to an identifiable person or group of persons? (2) Is there a risk of serious bodily harm or death? (3) Is the danger imminent? These factors must be defined in the context of each situation and different weights will be given to each, and to the various aspects of each, in any particular case. Under the “clarity” factor, it is important, as a general rule, that a group or person must always be ascertainable. In some situations, great significance might be given to the clear identification of a particular individual or group of intended victims, even if the group of intended victims is large. At the same time, a general threat of death or violence directed to everyone in a city or community, or anyone with whom the person may come into contact, may be too vague to warrant setting aside the privilege. However, if the threatened harm to the members of the public was particularly compelling, extremely serious and imminent, it might well be appropriate to lift the privilege. All the surrounding circumstances will have to be taken into consideration in every case. The “seriousness” factor requires that the threat be such that the intended victim is in danger of being killed or of suffering serious bodily harm. With respect to the “imminence” factor, the nature of the threat must be such that it creates a sense of urgency. This sense of urgency may be applicable to some time in the future. Depending on the seriousness and clarity of the threat, it will not always be necessary to impose a particular time limit on the risk. It is sufficient if there is a clear and imminent threat of serious bodily harm to an identifiable group, and if this threat is made in such a manner that a sense of urgency is created. If after considering all appropriate factors it is determined that the threat to public safety outweighs the need to preserve solicitor‑client privilege, then the privilege must be set aside. When it is, the disclosure should be limited so that it includes only the information necessary to protect public safety.
In this case, the solicitor‑client privilege must be set aside for the protection of members of the public. A reasonable observer, given all the facts for which solicitor‑client privilege is sought, would consider the potential danger posed by the accused to be clear, serious, and imminent. According to the psychiatrist’s affidavit, the accused suffered from a paraphiliac disorder with multiple paraphilias ‑‑ in particular sexual sadism ‑‑ and drug abuse difficulty. In his interview, the accused clearly identified the potential group of victims ‑‑ prostitutes in a specific area ‑‑ and described, in considerable detail, his plan and the method for effecting the attack. The evidence of planning and the prior attack on a prostitute similar to that which was planned emphasize the potential risk of serious bodily harm or death to prostitutes in that area. The combination of all these elements meets the factor of clarity, and the potential harm ‑‑ a sexually sadistic murder ‑‑ clearly meets the factor of seriousness. Lastly, although no evidence was adduced as to whether the psychiatrist considered that a future attack was imminent, two important elements indicate that the threat of serious bodily harm was imminent. First, the accused breached his bail conditions by continuing to visit the specific area where he knew prostitutes could be found. Second, after his arrest and while awaiting sentencing, he would have been acutely aware of the consequences of his actions.
The disclosure of the psychiatrist’s affidavit was properly limited at first instance to those portions of it which indicated that there was an imminent risk of death or serious bodily harm to an identifiable group comprising prostitutes located in a specific area. To that extent, the solicitor‑client privilege attaching to the psychiatrist’s affidavit must be set aside. In the result, the file will be unsealed and the ban on the publication of its contents is removed, except for those parts of the psychiatrist’s affidavit which do not fall within the public safety exception. The psychiatrist’s affidavit as edited at first instance will be made public together with all the other material in the Court’s file.
Per Lamer C.J. and Major and Binnie JJ. (dissenting): The confidentiality of the solicitor‑client privilege, which extends to communications between clients and experts retained by their counsel for the purpose of preparing a defence, must, in exceptional circumstances, yield to the interests of public safety. Since the entire factual basis from which the psychiatrist’s knowledge and opinion of the accused stem is the oral history provided by the accused, the accused’s communications, and the expert’s opinion arising from them, are privileged subject to the public safety exception.
While the danger in this case is sufficiently clear, serious and imminent to justify some warning to the relevant authorities, two principles should guide the analysis of the scope of the disclosure: (1) the breach of privilege must be as narrow as possible; and (2) an accused’s right to consult counsel without fear of having his words used against him at trial is vital to our conception of justice. In this case, the trial judge permitted disclosure of parts of the psychiatrist’s affidavit beyond those portions which indicate an imminent risk of serious harm or death, and could result in conscriptive evidence, such as the accused’s confession, being revealed unnecessarily. A limited exception which does not include conscriptive evidence against the accused would better address the immediate concern for public safety while respecting the importance of the privilege. The immediate concern for public safety is to ensure that the accused not harm anyone. This can be accomplished by permitting the psychiatrist to warn the relevant authorities that the accused poses a threat to prostitutes in a specific area. However, he should only disclose his opinion and the fact that it is based on a consultation with the accused. Specifically, he should not disclose any communication from the accused relating to the circumstances of the offence, nor should he be permitted to reveal any of the personal information which the trial judge excluded from his original order for disclosure.
This approach will foster a climate in which dangerous individuals are more likely to disclose their disorders, seek treatment and pose less danger to the public. As the facts of this case illustrate, the accused was only diagnosed and made aware of the possibility of treatment because he felt secure in confiding to the psychiatrist. If that confidence is undermined, then these individuals will not disclose the danger they pose, they will not be identified, and public safety will suffer.
Cases Cited
By Cory J.
Not followed: R. v. Derby Magistrates’ Court, [1995] 4 All E.R. 526; approved: R. v. Dunbar and Logan (1982), 68 C.C.C. (2d) 13; considered: Solosky v. The Queen, [1980] 1 S.C.R. 821; Tarasoff v. Regents of University of California, 551 P.2d 334 (1976); Thompson v. County of Alameda, 614 P.2d 728 (1980); Brady v. Hopper, 570 F.Supp. 1333 (1983); W. v. Egdell, [1990] 1 All E.R. 835; referred to: Anderson v. Bank of British Columbia (1876), 2 Ch. D. 644; R. v. Gruenke, [1991] 3 S.C.R. 263; Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860; R. v. Seaboyer, [1991] 2 S.C.R. 577; A. (L.L.) v. B. (A.), [1995] 4 S.C.R. 536; R. v. McCraw, [1991] 3 S.C.R. 72.
By Major J. (dissenting)
R. v. Perron (1990), 54 C.C.C. (3d) 108, [1990] R.J.Q. 752; In re Shell Canada Ltd., [1975] F.C. 184, 22 C.C.C. (2d) 70 (sub nom. Re Director of Investigation and Research Shell and Canada Ltd.); Solosky v. The Queen, [1980] 1 S.C.R. 821; R. v. Hebert, [1990] 2 S.C.R. 151; R. v. Jones, [1994] 2 S.C.R. 229; R. v. L. (C.K.) (1987), 62 C.R. (3d) 131; R. v. Poslowsky, [1996] B.C.J. No. 2550 (QL); R. v. King, [1983] 1 All E.R. 929; R. v. Ward (1981), 3 A. Crim. R. 171; City & County of San Francisco v. Superior Court, 231 P.2d 26 (1951); Calcraft v. Guest, [1898] 1 Q.B. 759; Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860; Harmony Shipping Co. S.A. v. Davis, [1979] 3 All E.R. 177; Lyell v. Kennedy (No. 2) (1883), 9 App. Cas. 81; Susan Hosiery Ltd. v. Minister of National Revenue, [1969] 2 Ex. C.R. 27; Thorson v. Jones (1973), 38 D.L.R. (3d) 312; M. (A.) v. Ryan, [1997] 1 S.C.R. 157; Thompson v. County of Alameda, 614 P.2d 728 (1980); R. v. P. (M.B.), [1994] 1 S.C.R. 555; R. v. Oakes, [1986] 1 S.C.R. 103.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 7 , 10 (b), 11 (c), (d).
Authors Cited
British Columbia. Professional Conduct Handbook, revised May 31, 1998.
Note. “The Future Crime or Tort Exception to Communications Privileges” (1964), 77 Harv. L. Rev. 730.
Ontario. Law Society of Upper Canada. Professional Conduct Handbook. Toronto: Law Society of Upper Canada, 1998.
APPEAL from a judgment of the British Columbia Court of Appeal, [1998] B.C.J. No. 3182 (QL), allowing in part the accused’s appeal from a judgment of Henderson J. ordering a psychiatrist to disclose his report to the Crown. Appeal dismissed, Lamer C.J. and Major and Binnie JJ. dissenting.
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 intervener.
The reasons of Lamer C.J. and Major and Binnie JJ. were delivered by
//Major J.//
Major J. (dissenting) --
I. Introduction
1 I agree with Justice Cory’s summation of the facts giving rise to this appeal and with his conclusion that the confidentiality of the solicitor-client privilege must, in exceptional circumstances of public safety, yield to the public good.
2 The point of departure arises in the restriction each of us places on the scope of disclosure.
3 In my opinion a limited exception which does not include conscriptive evidence against the accused would address the immediate concern for public safety in this appeal while respecting the importance of the privilege. I do not read Cory J.’s reasons as imposing that limitation.
4 This approach will in my view foster a climate in which dangerous individuals are more likely to disclose their disorders, seek treatment and pose less danger to the public.
II. The Principles Underlying Solicitor-Client Privilege
5 In Canada, everyone is entitled to retain legal counsel to defend and protect their interests. This right is particularly important in criminal proceedings. The rationale for protection of the solicitor-client relationship was clearly stated by Jackett C.J. in Re Shell Canada Ltd., [1975] F.C. 184, 22 C.C.C. (2d) 70 (C.A.) (sub nom. Re Director of Investigation and Research and Shell Canada Ltd.), at p. 193 F.C., and adopted by Dickson J. (as he then was) for this Court in Solosky v. The Queen, [1980] 1 S.C.R. 821, at p. 834:
. . . the protection, civil and criminal, afforded to the individual by our law is dependent upon his having the aid and guidance of those skilled in the law untrammelled by any apprehension that the full and frank disclosure by him of all his facts and thoughts to his legal adviser might somehow become available to third persons so as to be used against him.
6 If the confidences clients share with counsel were not protected by privilege, it seems apparent that accused persons would hesitate to confide in their legal advisors, who in turn could not adequately represent them. The starting point of Canadian justice is that no one, no matter how horrible the alleged offence, be denied a full defence. Nor will they be prejudiced by retaining counsel and freely discussing the case with him or her.
7 In the criminal context principles embodied in the rules of privilege have gained constitutional protection by virtue of the enshrinement of the right to full answer and defence, the right to counsel, the right against self-incrimination and the presumption of innocence in ss. 7 , 10 (b), 11 (c) and 11 (d) of the Canadian Charter of Rights and Freedoms ; R. v. Hebert, [1990] 2 S.C.R. 151; R. v. Jones, [1994] 2 S.C.R. 229, at pp. 246-55.
8 Each of these rights support the extension of privilege to communications between clients and experts retained by their counsel for the purpose of preparing a defence. Together, they demonstrate the reasons for denying any use of solicitor-client communications against an accused in any legal proceeding. To deny the protection of solicitor-client privilege to the confidential communications of the accused to those intimately involved in the preparation of his defence would frustrate these rights. For these reasons, the communications between an accused and his counsel, made in furtherance of his or her defence, are accorded the highest level of protection and confidentiality.
III. Extension of Solicitor-Client Privilege to Experts
9 In this case the privilege is claimed not for the client’s conversations with his lawyer, but those with the psychiatrist whom his lawyer retained as an expert. Tradition and case law support the extension of this privilege to include communications, by conversation or otherwise, between the accused and the expert in the same way as in the traditional solicitor-client relationship.
10 Courts in Canada, Australia, the United Kingdom and the United States have all concluded that client communications with third-party experts retained by counsel for the purpose of preparing their defence are protected by solicitor-client privilege: see R. v. Perron (1990), 54 C.C.C. (3d) 108, [1990] R.J.Q. 752 (C.A.); R. v. L. (C.K.) (1987), 62 C.R. (3d) 131 (Ont. Dist. Ct.); R. v. Poslowsky, [1996] B.C.J. No. 2550 (QL) (Prov. Ct.); R. v. King, [1983] 1 All E.R. 929 (C.A.); R. v. Ward (1981), 3 A. Crim. R. 171 (N.S.W. Ct. Cr. App.).
11 In Perron, supra, the Crown was permitted to call and examine a psychiatrist who was retained by the defence but not called as a witness. The Quebec Court of Appeal held that the substance of the accused’s communications with the psychiatrist were privileged and therefore inadmissible. The court adopted the opinion set out in City & County of San Francisco v. Superior Court, 231 P.2d 26 (1951), at p. 31, per Traynor J. of the Supreme Court of California, who held that:
The privilege of confidence would be a vain one unless its exercise could be thus delegated. A communication, then, by any form of agency employed or set in motion by the client is within the privilege.
. . .
Thus, when communication by a client to his attorney regarding his physical or mental condition requires the assistance of a physician to interpret the client’s condition to the attorney, the client may submit to an examination by the physician without fear that the latter will be compelled to reveal the information disclosed. [Emphasis in original.]
12 The court concluded that communications between an accused and psychiatrist come within the scope of the solicitor-client relationship and create the solicitor-client privilege. A privilege that goes to the heart of the ability of an accused to seek counsel and present a full answer and defence to the charges proffered against him.
13 The Quebec Court of Appeal concluded in Perron, supra, at p. 113 C.C.C.:
[translation] When counsel requires the services of an expert in order to help him better prepare his defence, he acts within the scope of his mandate. It is the interest of his client which compels counsel to confer on a specialist the charge of evaluating the case and it follows that the accused must be able to undergo the evaluation in the same climate of confidence and in complete confidentiality as if he were communicating with counsel.
14 This reasoning is persuasive, and confirms that conversations with defence experts, such as psychiatrists, fall within the solicitor-client privilege and attract permanent and substantive privilege: see Calcraft v. Guest, [1898] 1 Q.B. 759 (C.A.), Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860.
IV. Is the Substance of the Psychiatrist’s Opinion Privileged?
15 The respondent asserts that even if Mr. Jones’s communications are privileged, Dr. Smith’s opinion based on those communications is not privileged, on the basis of the long-established maxim that there is no property in a witness: see Harmony Shipping Co. S.A. v. Davis, [1979] 3 All E.R. 177 (C.A.), per Lord Denning, M.R., at pp. 180‑81. In the present case the entire factual basis from which the witness’s knowledge and opinion of the accused stem is the oral history provided by the accused. These communications and opinions arising from them are privileged subject to the public safety exception.
16 In Ward, supra, at p. 190, the New South Wales Court of Criminal Appeal held the psychiatrist’s evidence to be beyond the reach of the Crown:
The first substantial question to be considered is whether Dr. Barclay was retained by the appellant for the purpose of forming an opinion, as a psychiatrist, as to the appellant’s mental condition so that that opinion might, if the appellant desired, be used for the purpose of the forthcoming trial of the appellant. If he was so retained then what the appellant had said to him was the subject of legal professional privilege and unless the accused waived the privilege, Dr. Barclay’s account of what he had been told by the appellant when interviewed and the opinion which he formed from that account, could not be put before the jury. [Emphasis added.]
17 The judgment of Lord Blackburn in Lyell v. Kennedy (No. 2) (1883), 9 App. Cas. 81 (H.L.), at p. 87, cited with approval by Jackett P. in Susan Hosiery Ltd. v. Minister of National Revenue, [1969] 2 Ex. C.R. 27, at pp. 34-35, provides additional support for this conclusion:
. . . it seems to me the plain reason and sense of the thing is that as soon as you say that the particular premises are privileged and protected, it follows that the mere opinion and belief of the party from those premises should be privileged and protected also. . . . when the interrogatory is simply “what is the belief which you have formed from reading that brief?” [i.e., the privileged information] it seems to me . . . to follow that you cannot ask that question.
18 In Thorson v. Jones (1973), 38 D.L.R. (3d) 312 (B.C.S.C.), the client identified himself, in strict confidence, to his solicitor as the driver responsible for an unsolved hit-and-run. The court held that the client’s identity constituted privileged information and was not to be revealed.
V. Purpose and Application of the Public Safety Exception
19 I agree with Cory J. that the standard of a “clear, serious and imminent” danger is the appropriate test for disclosure of privileged communications. There are compelling public policy reasons for limiting disclosure to cases of clear and imminent danger. The record confirms that Mr. Jones only disclosed his secret plans because his lawyer had properly advised him that anything he said to Dr. Smith would be confidential. If Cory J. is correct in holding that, in cases where the necessity test is met, the privilege is overridden to the extent of allowing disclosure of self-incriminating evidence, the result might endanger the public more than the public safety exception would protect them.
20 If defence counsel cannot freely refer clients, particularly dangerous ones, to medical or other experts without running a serious risk of the privilege being set aside, their response will be not to refer clients until after trial, if at all. This could result in dangerous people remaining free on bail for long periods of time, undiagnosed and untreated, presenting a danger to society.
21 The chilling effect of completely breaching the privilege would have the undesired effect of discouraging those individuals in need of treatment for serious and dangerous conditions from consulting professional help. In this case the interests of the appellant and more importantly the interests of society would be better served by his obtaining treatment. This Court has recognized that mental health, including those suffering from potentially dangerous illnesses, is an important public good: see M. (A.) v. Ryan, [1997] 1 S.C.R. 157, at para. 27.
22 Although the appellant did not go to Dr. Smith to seek treatment, it is obvious that he is more likely to get treatment when his condition is diagnosed than someone who keeps the secret of their illness to themselves. It seems apparent that society will suffer by imposing a disincentive for patients and criminally accused persons to speak frankly with counsel and medical experts retained on their behalf.
23 As appealing as it may be to ensure that Mr. Jones does not slip back into the community without treatment for his condition, completely lifting the privilege and allowing his confidential communications to his legal advisor to be used against him in the most detrimental ways will not promote public safety, only silence. For this doubtful gain, the Court will have imposed a veil of secrecy between criminal accused and their counsel which the solicitor-client privilege was developed to prevent. Sanctioning a breach of privilege too hastily erodes the workings of the system of law in exchange for an illusory gain in public safety.
VI. Application to the Facts
24 While I agree with Cory J. that the danger in this case is sufficiently clear, serious and imminent to justify some warning to the relevant authorities, I find that the balance between the public interests in safety and the proper administration of justice is best struck by a more limited disclosure than the broader abrogation of privilege he proposes. In particular, Cory J. endorses the trial judge’s limitation of Dr. Smith’s affidavit to those portions which indicate an imminent risk of serious harm or death. In the result, conscriptive evidence such as the accused’s confession can be disclosed. In my opinion, the danger posed by the accused can be adequately addressed by the expression of that opinion by Dr. Smith without disclosing the confession.
25 Two principles should guide the analysis of the scope of this disclosure. First, the breach of privilege must be as narrow as possible; Descôteaux v. Mierzwinski, supra, at p. 875. Disclosure is justified only when it can actually accomplish something in the public interest, such as preventing injury or death. As the authors of “The Future Crime or Tort Exception to Communications Privileges” (1964), 77 Harv. L. Rev. 730, at p. 732, observe, “the [American] Canons of Professional Ethics make it clear that the attorney is released from his duty to maintain confidence in order ‘to prevent the act or protect those against whom it is threatened’”. (Emphasis added.) See also Thompson v. County of Alameda, 614 P.2d 728 (Cal. 1980), at p. 736.
26 Second, an accused’s right to consult counsel without fear of having his words used against him at trial is vital to our conception of justice. See R. v. P. (M.B.), [1994] 1 S.C.R. 555, per the Chief Justice, at p. 577:
Perhaps the single most important organizing principle in criminal law is the right of an accused not to be forced into assisting in his or her own prosecution.
27 All of the information upon which the respondent formed his concern about future conduct of the accused, emanated from the accused himself, and would not generally have been available. Our jurisprudence does not allow the conscription of an accused’s own words against him: see R. v. Jones, supra.
28 The immediate concern for public safety in this case is to ensure that the appellant not harm anyone. The solicitor-client privilege is a fundamental common law right of Canadians. That right must be interpreted in light of the Charter which provides for the right of an accused to counsel. Anytime such a fundamental right is eroded the principal of minimal impairment must be observed. See R. v. Oakes, [1986] 1 S.C.R. 103. This can be accomplished by a limited disclosure of the psychiatrist’s opinion. Courts are obligated to craft the narrowest possible exception to privilege which accomplishes this purpose. Accordingly, Dr. Smith should be permitted to warn the relevant authorities (i.e., the Attorney General and sentencing judge) that Mr. Jones poses a threat to prostitutes in the Vancouver area. However, Dr. Smith should only disclose his opinion and the fact that it is based on a consultation with Mr. Jones. Specifically, he should not disclose any communication from the accused relating to the circumstances of the offence, nor should he be permitted to reveal any of the personal information which the trial judge excluded from his original order for disclosure.
29 I agree with Cory J. that in rare cases where an individual poses an instant risk such that even an ex parte application to the court is not possible, the person reviewing the otherwise privileged information may issue a timely warning to the police. Otherwise, the scope and timing of disclosures should be dealt with by the courts on a case-by-case basis.
30 The public interest in cases such as this is twofold, and requires not only that the dangerous individual is prevented from harming anyone, but that they obtain treatment if needed. Appealing as it might be to force individuals in Mr. Jones’s position into treatment through the criminal process, it is unlikely to happen. If there is a risk that conscriptive evidence from the mouth of the accused can be used against him, the defence bar is going to be reluctant to refer dangerous clients to the care of experts. Disclosure will be discouraged and treatment will not occur.
31 As the facts of this case illustrate, Mr. Jones was only diagnosed and made aware of the possibility of treatment because he felt secure in confiding to Dr. Smith. If that confidence is undermined, then these individuals will not disclose the danger they pose, they will not be identified, and public safety will suffer.
VII. Scope of this Decision
32 Cory J. relies on American jurisprudence regarding the private law duty of physicians to warn potential victims of their dangerous patients. With respect I think these cases are of limited usefulness, as they do not engage any of the legal and constitutional principles which underlie the solicitor-client privilege. In the absence of that issue in this case I will not comment on the existence or scope of the duty to warn in private doctor-client relationships.
33 This decision relates only to a limited exception to the solicitor-client privilege created by these facts, and does not extinguish that privilege. It pertains only to the prevention of imminent perils and the ability of legal and medical professionals to warn the police and potential victims of clear, serious and pressing dangers in the manner outlined. It follows that nothing in this decision is intended to decide whether any of the privileged communications made between Mr. Jones and Dr. Smith are admissible at any judicial proceedings. Those are issues to be determined by the presiding judge as they arise.
VIII. Disposition
34 Accordingly, I would allow the appeal without costs, confirm the entirety of Mr. Jones’s communications to Dr. Smith to be privileged, but permit Dr. Smith to give his opinion and diagnosis of the danger posed by Mr. Jones.
The judgment of L’Heureux-Dubé, Gonthier, Cory, McLachlin, Iacobucci and Bastarache JJ. was delivered by
//Cory J.//
35 Cory J. -- The solicitor‑client privilege permits a client to talk freely to his or her lawyer secure in the knowledge that the words and documents which fall within the scope of the privilege will not be disclosed. It has long been recognized that this principle is of fundamental importance to the administration of justice and to the extent it is feasible, it should be maintained. Yet when public safety is involved and death or serious bodily harm is imminent, the privilege should be set aside. This appeal must determine what circumstances and factors should be considered and weighed in determining whether solicitor-client privilege should be set aside in the interest of protecting the safety of the public.
I. Factual Background
36 Solicitor-client privilege is claimed for a doctor’s report. Pending the resolution of that claim the names of the parties involved have been replaced by pseudonyms. The appellant, “James Jones”, was charged with aggravated sexual assault of a prostitute. His counsel referred him to a psychiatrist, the respondent, “John Smith”, for a forensic psychiatric assessment. It was hoped that it would be of assistance in the preparation of the defence or with submissions on sentencing in the event of a guilty plea. His counsel advised Mr. Jones that the consultation was privileged in the same way as a consultation with him would be. Dr. Smith interviewed Mr. Jones for 90 minutes on July 30, 1997. His findings are contained in an affidavit he submitted to the judge of first instance. They set out the basis for his belief that Mr. Jones poses a continuing danger to the public.
37 Dr. Smith reported that Mr. Jones described in considerable detail his plan for the crime to which he subsequently pled guilty. It involved deliberately choosing as a victim a small prostitute who could be readily overwhelmed. He planned to have sex with her and then to kidnap her. He took duct tape and rope with him, as well as a small blue ball that he tried to force into the woman’s mouth. Because he planned to kill her after the sexual assault he made no attempt to hide his identity.
38 Mr. Jones planned to strangle the victim and to dispose of her body in the bush area near Hope, British Columbia. He was going to shoot the woman in the face before burying her to impede identification. He had arranged time off from his work and had carefully prepared his basement apartment to facilitate his planned sexual assault and murder. He had told people he would be going away on vacation so that no one would visit him and he had fixed dead bolts on all the doors so that a key alone would not open them.
39 Mr. Jones told Dr. Smith that his first victim would be a “trial run” to see if he could “live with” what he had done. If he could, he planned to seek out similar victims. He stated that, by the time he had kidnapped his first victim, he expected that he would be “in so deep” that he would have no choice but to carry out his plans.
40 On July 31, Dr. Smith telephoned Mr. Jones’s counsel and informed him that in his opinion Mr. Jones was a dangerous individual who would, more likely than not, commit future offences unless he received sufficient treatment.
41 On September 24, 1997, Mr. Jones pled guilty to aggravated assault and the matter was put over for sentencing. Sometime after November 19, Dr. Smith phoned Mr. Jones’s counsel to inquire about the proceedings. On learning that the judge would not be advised of his concerns, Dr. Smith indicated that he intended to seek legal advice and shortly thereafter commenced this action.
42 The in camera hearing took place in December 1997. Dr. Smith filed an affidavit describing his interview with Mr. Jones and his opinion based upon the interview. Mr. Jones filed an affidavit in response. On December 12, 1997, Henderson J. ruled that the public safety exception to the law of solicitor‑client privilege and doctor‑patient confidentiality released Dr. Smith from his duties of confidentiality. He went on to rule that Dr. Smith was under a duty to disclose to the police and the Crown both the statements made by Mr. Jones and his opinion based upon them. Henderson J. ordered a stay of his order to allow for an appeal and Mr. Jones promptly appealed the decision.
43 The Court of Appeal allowed the appeal but only to the extent that the mandatory order was changed to one permitting Dr. Smith to disclose the information to the Crown and police: [1998] B.C.J. No. 3182 (QL). The order was stayed to permit Mr. Jones to consider a further appeal. It also directed that pseudonyms be used, that proceedings be heard in camera and that the file remain sealed pending further order. This order is discussed in greater detail below. The sentencing of Mr. Jones on the aggravated assault charge was adjourned pending the outcome of this appeal.
II. Analysis
A. The Nature of the Solicitor‑Client Privilege
44 Both parties made their submissions on the basis that the psychiatrist’s report was protected by solicitor‑client privilege, and it should be considered on that basis. It is the highest privilege recognized by the courts. By necessary implication, if a public safety exception applies to solicitor‑client privilege, it applies to all classifications of privileges and duties of confidentiality. It follows that, in these reasons, it is not necessary to consider any distinctions that may exist between a solicitor-client privilege and a litigation privilege.
45 The solicitor‑client privilege has long been regarded as fundamentally important to our judicial system. Well over a century ago in Anderson v. Bank of British Columbia (1876), 2 Ch. D. 644 (C.A.), at p. 649, the importance of the rule was recognized:
The object and meaning of the rule is this: that as, by reason of the complexity and difficulty of our law, litigation can only be properly conducted by professional men, it is absolutely necessary that a man, in order to prosecute his rights or to defend himself from an improper claim, should have recourse to the assistance of professional lawyers, . . . to use a vulgar phrase, that he should be able to make a clean breast of it to the gentleman whom he consults with a view to the prosecution of his claim, or the substantiating of his defence . . . that he should be able to place unrestricted and unbounded confidence in the professional agent, and that the communications he so makes to him should be kept secret, unless with his consent (for it is his privilege, and not the privilege of the confidential agent), that he should be enabled properly to conduct his litigation.
46 Clients seeking advice must be able to speak freely to their lawyers secure in the knowledge that what they say will not be divulged without their consent. It cannot be forgotten that the privilege is that of the client, not the lawyer. The privilege is essential if sound legal advice is to be given in every field. It has a deep significance in almost every situation where legal advice is sought whether it be with regard to corporate and commercial transactions, to family relationships, to civil litigation or to criminal charges. Family secrets, company secrets, personal foibles and indiscretions all must on occasion be revealed to the lawyer by the client. Without this privilege clients could never be candid and furnish all the relevant information that must be provided to lawyers if they are to properly advise their clients. It is an element t