R. v. Brown

R. v. Brown
Collection
Supreme Court Judgments
Date
2002-03-28
Neutral citation
2002 SCC 32
Report
[2002] 2 SCR 185
Case number
28635
Judges
McLachlin, Beverley; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis
On appeal from
Ontario
Subjects
Criminal law
Notes
SCC Case Information: 28635
Decision Content
R. v. Brown, [2002] 2 S.C.R. 185, 2002 SCC 32
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
Indexed as: R. v. Brown
Neutral citation: 2002 SCC 32.
File No.: 28635.
2002: January 23; 2002: March 28.
Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
on appeal from the superior court of justice for ontario
Criminal law – Fair trial – Full answer and defence – Solicitor-client privilege – Accused charged with murder – Third party allegedly confessing to murder to his lawyers – Accused seeking production of lawyers’ files – Whether trial judge properly applied threshold and innocence at stake tests set out in McClure – Proper scope of disclosure order – Degree of immunity to be provided to privilege holder.
About three weeks after a man who had been found stabbed in the chest died in hospital, R told the police that her then boyfriend, the appellant, had told her that he was the person who had killed the deceased; she said that he had also told her that he had confessed to his lawyers. The police investigated the appellant in relation to the homicide for a number of months. The investigation included a consent wiretap of R’s home telephone and the interception of her communications with the appellant using a body pack. Armed with a search warrant, the police seized clothing, knives and footwear from the appellant’s residence. All items tested negative for the blood of the deceased. The appellant has since denied killing the deceased. The appellant was never charged with respect to the murder and the investigation against him was dropped.
The accused was seen looking for the deceased on the morning the deceased was killed. A videotape showed the accused entering his own apartment building, located one block from the crime scene, less than an hour after the deceased had been found stabbed. Under warrant, the police seized from the accused’s apartment a napkin with the deceased’s pager number on it. The accused was charged with the deceased’s murder shortly after a jailhouse informant reported that he had overheard a conversation between the accused and a third inmate. According to the informant, the accused told the third inmate that he had purchased drugs from the deceased and stabbed him. Although the informant was called as a witness at the preliminary hearing, the prosecutor has not yet received approval from the Attorney General’s in-custody informer committee to call him at trial. The accused brought a McClure application for an order compelling production of the files, documents and notes, if any, relating to communications between the appellant and his lawyers concerning the appellant’s involvement in the deceased’s death. The motions judge found that the accused had satisfied both the threshold question and the innocence at stake test of the McClure application. He ordered production of one document and portions of other documents.
Held: The appeal should be allowed and the motions judge’s order for production set aside.
Per McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie and LeBel JJ.: The McClure test for infringing solicitor-client privilege is stringent, and will only be satisfied in rare circumstances. 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 that he is unable to raise a reasonable doubt as to his guilt in any other way. “Information” in the context of this threshold question must mean more than simple knowledge of a fact. A McClure application should only succeed on the threshold question if the accused does not have access to other information that will be admissible at trial. In this case the accused had another source of information regarding the appellant’s confession in the form of R’s testimony. However, the motions judge expressed serious concerns about the admissibility of such testimony and about whether, if admissible, it would be believed at trial. In the end, having interpreted “information” as meaning “potentially substantively usable and reliable evidence”, the motions judge concluded that the privileged information was not otherwise available.
The motions judge reached this conclusion prematurely. While there are undoubtedly some obstacles to the admission of R’s evidence, it is not clear that it will be inadmissible. First, there is a significant degree of necessity to her testimony, in that, absent a successful McClure application, it is the only evidence of the appellant’s confession, which may exculpate the accused. Second, it may be considered sufficiently reliable to be admitted under an exception to the hearsay rule. Finally, there is some potential that the confession to R may be admissible as a declaration against penal interest. The motions judge ought to have held a voir dire to determine the admissibility of R’s hearsay testimony before concluding that the requested information was not available from another source. If it is found to be admissible, then the McClure application should fail on the threshold question because the requested information is available from another source as admissible evidence. Furthermore, prior to ruling on the McClure application, the motions judge should have decided whether the appellant waived his solicitor-client privilege by telling R about his solicitor-client communications. Only if the motions judge had concluded that there was no waiver and that R’s testimony was inadmissible should he have proceeded to the other elements of the McClure test.
The motions judge erred in reaching his conclusion that the accused could not raise a reasonable doubt as to his guilt in any other way. Although it is too early to decide the issue, with only circumstantial evidence it is speculative that the Crown could prove its case against the accused beyond a reasonable doubt. The only other evidence that may implicate the accused is that of the jailhouse informant who allegedly overheard the accused confessing to another inmate. As there has yet been no decision to call the informant to testify, it would be premature to conclude that the accused will be unable to raise a reasonable doubt without invading the appellant’s solicitor-client privilege.
The motions judge applied the first stage of the innocence at stake test correctly. There was a sufficient evidentiary basis to find that some solicitor-client communications exist. Further, the solicitor-client communications, if they exist, are capable of raising a reasonable doubt as to the accused’s guilt.
While a McClure application should not be used as a discovery process to allow the defence or the trial judge to interrogate the solicitor, the disclosure should not be strictly limited to written communications contained in the file. The rationale for breaching privilege with respect to written materials is equally applicable to oral communications. An accused should not face the likelihood of wrongful conviction simply because a third party’s solicitor-client communications were not committed to paper.
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 Canadian Charter of Rights and Freedoms . The privilege holder should be subject to the same Charter protections that would apply had he been compelled to testify as a witness, namely, use immunity and derivative use immunity. Use and derivative use immunity should prohibit the Crown both from using the communications as direct evidence against the privilege holder and from using the communications to impeach the privilege holder if and when he is himself an accused. That does not mean, however, that the disclosure of privileged information under a McClure application should give rise to so-called “transactional” immunity (i.e., immunity from any future criminal prosecution for the crimes which are the subject of the solicitor-client communications).
Per L’Heureux‑Dubé and Arbour JJ.: Major J.’s reasons were agreed with, subject to the following additional comments. In the course of McClure applications, trial judges should examine all alternatives to infringing the solicitor-client 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. A court has the discretion to relax strict rules of evidence in favour of the accused where it is necessary to prevent a miscarriage of justice. 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 should yield first. In the case of hearsay, threshold concerns about necessity and reliability, which reflect issues of fairness to the opponent in the adversary system, should be weighed against the dangers of convicting an innocent person and the undesirability of intruding into confidences made to a solicitor.
Cases Cited
By Major J.
Applied: R. v. McClure, [2001] 1 S.C.R. 445, 2001 SCC 14; referred to: R. v. Williams (1985), 50 O.R. (2d) 321; Chambers v. Mississippi, 410 U.S. 284 (1973); R. v. Brooks, [2000] 1 S.C.R. 237, 2000 SCC 11; R. v. O’Connor, [1995] 4 S.C.R. 411; Smith v. Jones, [1999] 1 S.C.R. 455; Boucher v. The Queen, [1955] S.C.R. 16; R. v. Stinchcombe, [1991] 3 S.C.R. 326; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; R. v. P. (M.B.), [1994] 1 S.C.R. 555; R. v. Jones, [1994] 2 S.C.R. 229; R. v. Fitzpatrick, [1995] 4 S.C.R. 154; R. v. White, [1999] 2 S.C.R. 417; R. v. S. (R.J.), [1995] 1 S.C.R. 451; British Columbia Securities Commission v. Branch, [1995] 2 S.C.R. 3; R. v. Stillman, [1997] 1 S.C.R. 607; R. v. Burlingham, [1995] 2 S.C.R. 206; R. v. Calder, [1996] 1 S.C.R. 660; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; A. (L.L.) v. B. (A.), [1995] 4 S.C.R. 536; R. v. Adams, [1995] 4 S.C.R. 707; R. v. Mentuck, [2001] 3 S.C.R. 442, 2001 SCC 76.
By Arbour J.
Applied: R. v. McClure, [2001] 1 S.C.R. 445, 2001 SCC 14; referred to: R. v. Williams (1985), 50 O.R. (2d) 321; Dersch v. Canada (Attorney General), [1990] 2 S.C.R. 1505; R. v. Rowbotham (1988), 41 C.C.C. (3d) 1; R. v. Finta, [1994] 1 S.C.R. 701, aff’g (1992), 73 C.C.C. (3d) 65; R. v. Khan, [1990] 2 S.C.R. 531; R. v. B. (K.G.), [1993] 1 S.C.R. 740.
Statutes and Regulations Cited
Canada Evidence Act, R.S.C. 1985, c. C-5, s. 5(2) [repl. 1997, c. 18, s. 116].
Canadian Charter of Rights and Freedoms, ss. 7 , 11 (c), 13 .
Criminal Code, R.S.C. 1985, c. C-46, ss. 278.1 -278.91 [ad. 1997, c. 30, s. 1], 278.7(3) [idem], 674, 675, 690.
Supreme Court Act, R.S.C. 1985, c. S-26, s. 40(1) [rep. & sub. 1990, c. 8, s. 37].
Authors Cited
Berger, Mark. Taking the Fifth: The Supreme Court and the Privilege Against Self-Incrimination. Lexington, Mass.: Lexington Books, 1980.
Proulx, Michel, and David Layton. Ethics and Canadian Criminal Law. Toronto: Irwin Law, 2001.
APPEAL from judgments of the Ontario Superior Court of Justice, [2001] O.J. No. 3408 (QL), [2001] O.J. No. 3409 (QL). Appeal allowed.
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).
The judgment of McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie and LeBel JJ. was delivered by
MAJOR J. --
I. Introduction
1 This appeal deals with the application of the test set out in R. v. McClure, [2001] 1 S.C.R. 445, 2001 SCC 14. It raises again the competing interests of solicitor-client privilege and an accused’s right under s. 7 of the Canadian Charter of Rights and Freedoms to make full answer and defence. Both are fundamental tenets of our system of justice. In McClure, this Court recognized that solicitor-client privilege is not absolute and may, in rare circumstances, be required to yield in order to permit an accused to make full answer and defence to a criminal charge.
2 While it is impossible to place either right higher on a hierarchy, as these reasons hope to explain, Canadians’ abhorrence at the possibility of a faulty conviction tips the balance slightly in favour of innocence at stake over solicitor-client privilege. A similar decision on public policy has been made to protect the identity of informants.
3 However, it was also emphasized in McClure, at para. 5, that “the occasions when the solicitor-client privilege yields are rare and the test to be met is a stringent one”. While obvious, the Court reiterated that any erosion of the absolute nature of solicitor-client privilege would of necessity cause some damage to the solicitor-client relationship. 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” (para. 47). It is intended to be a rare exception and used as a last resort.
4 The McClure test comprises a threshold question and a two-stage innocence at stake test, which proceed as follows:
- To satisfy the threshold test, the accused must establish that:
- the information he seeks from the solicitor-client communication is not available from any other source; and
- he is otherwise unable to raise a reasonable doubt.
- If the threshold has been satisfied, the judge should proceed to the innocence at stake test, which has two stages.
- Stage #1: The accused seeking production of the solicitor-client communication has to demonstrate an evidentiary basis to conclude that a communication exists that could raise a reasonable doubt as to his guilt.
- 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 guilt of the accused.
- It is important to distinguish that the burden in the second stage of the innocence at stake test (likely to raise a reasonable doubt) is stricter than that in the first stage (could raise a reasonable doubt).
- If the innocence at stake test is satisfied, the judge should order disclosure of the communications that are likely to raise a reasonable doubt, in accordance with the guiding principles discussed infra.
5 In the present appeal, I respectfully conclude 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. The appeal is allowed.
II. Facts
6 At approximately 4:00 a.m. on July 21, 1998, Shaun Baksh was discovered lying on the east side of Barrington Avenue in Toronto. He had been stabbed in the chest and died a short time later at St. Michael’s Hospital. The subsequent autopsy confirmed that he had received a single knife wound to the heart.
7 On August 12, 1998, Donna Robertson told two homicide detectives that her then boyfriend, the appellant, David Benson, had told her that he was the person who had killed Baksh. According to Robertson’s account, Benson told her that he had gone out to the fire escape one night when he could not sleep. A man with an accent approached him and offered to sell him drugs. Benson declined, but he persisted and put his arm around Benson. Benson told the man to “back off” and, when he refused, Benson pulled a knife and stabbed him. The man then staggered away through the adjacent park and then west toward Barrington Avenue. Benson threw away the clothes that he was wearing, except for his shoes.
8 Robertson also told the police that Benson told her that he had confessed to his lawyers, Edward Greenspan, and later Todd Ducharme and Peter Copeland. She said that she had gone with Benson to meet Mr. Copeland, and that he had provided them with business cards on which he wrote words that purported to invoke the right to silence in the face of police questioning. Robertson produced her card to the police.
9 The police investigated Benson in relation to the homicide for a number of months. The investigation included a consent wiretap of Robertson’s home telephone and the interception of her communications with Benson using a body pack. Armed with a search warrant, the police seized clothing, knives and footwear from Benson’s residence. All items tested negative for the blood of the deceased. Benson has since denied killing Baksh. Benson was never charged with respect to the murder and the investigation against him was dropped.
10 The respondent Jason Brown was seen looking for Baksh on the morning that Baksh was killed. Brown was also looking for a mountain bike that he had allegedly fronted to Baksh as part of a drug deal. Witnesses stated that Brown had in his possession a napkin, on which Baksh’s pager number was written in red ink. A videotape showed Brown entering his own apartment building, located one block from the crime scene, at 4:47 a.m. on July 21, 1998, less than an hour after Baksh had been found stabbed.
11 On July 29, 1998, under warrant, the police seized from Brown’s apartment, among other things, a napkin with the deceased’s pager number on it. Brown entered his apartment during the search and provided a statement to the police in which he denied knowing the deceased, denied knowing anything about a mountain bike, and said that he had been home on the night of the homicide.
12 On July 31, 1998, with counsel present, Brown gave a second statement to the police. In this statement, he said that he had bought cocaine from the deceased three times on the night and early morning of the homicide. On the third such time, Brown said that he had no money and therefore fronted a stolen mountain bike for more cocaine. Brown wanted the bike back and said that he would bring money later for the cocaine. He denied killing Baksh.
13 Brown was charged with Baksh’s murder on November 1, 1999. Prior to that date, the police claimed to lack reasonable and probable grounds to charge either Benson or Brown with the homicide. Brown’s charge came shortly after a jailhouse informant, who had shared a cell with Brown at the Toronto jail in November 1998, reported that he had overheard a conversation between Brown and a third inmate, McDoom. According to the informant, Brown told McDoom that he had purchased drugs from Baksh, stabbed him, and taken a bag of crack cocaine.
14 Although the informant was called as a witness at the preliminary hearing, the prosecutor has not yet received the approval of the “In-Custody Informer Committee” within the office of the Attorney General to call the informant at trial. The Committee is waiting for the final determination of Brown’s McClure application and a further determination of whether the Crown may review the material ordered disclosed to Brown in order to assess the reliability of the informant.
III. Relevant Statutory Provision
15 Canadian Charter of Rights and Freedoms
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
IV. Judicial History
A. Ontario Superior Court of Justice, Motions Judge’s Ruling on the First Stage of the McClure Application, [2001] O.J. No. 3408 (QL)
16 The respondent accused brought an application for an order compelling production of the files, documents and notes, if any, relating to communications between David Benson and his lawyers concerning Benson’s involvement in the death of Shaun Baksh. The application was made in accordance with McClure, supra.
17 Dambrot J. issued two rulings. The first was to determine the threshold question and first stage of the innocence at stake test of the McClure application. The threshold question was set out at para. 48 of McClure:
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.
18 After reviewing the evidence, Dambrot J. inquired whether the information sought was available from another source, and noted that he found the test difficult to apply. In particular, he discussed two possible interpretations of the threshold question: “whether this requires the accused to show that he cannot find evidence of a fact other than in the file, or whether he or she must establish that the information in the file is not otherwise available” (para. 9 (emphasis in original)). He selected the first interpretation (at para. 9):
After all, while the circumstances when the privilege should give way are narrow, the rationale for setting aside the privilege is clear: the privilege will yield where it stands in the way of an innocent person establishing his or her innocence. Viewed in that light, it becomes apparent that where the accused has information about a fact, but the solicitor’s file will yield evidence of that fact, and the evidence is not otherwise available, then the prerequisite is met. [Emphasis added.]
19 He then reviewed the relevant facts and concluded that, “viewed as potentially substantively usable and reliable evidence” (para. 10), the privileged information sought by the accused was not available from any other source. First, Benson himself would not testify that he killed Baksh. Second, while the intercepted personal communications between Benson and Robertson contain an adoption of the fact that he confessed to her, they also contain a denial of the truth of the underlying confession. Finally, both the intercepted communications and Benson’s confession to Robertson suffered from “evidentiary impediments” (para. 10) that would hinder their use as admissible evidence at trial. Benson and Robertson had been drinking heavily at the time of his confession to her, and their relationship was a stormy one that was apparently coming to an end. Thus, there would be some doubt as to the reliability of Robertson’s evidence about Benson’s confession to her.
20 In contrast, Benson’s alleged confession to his legal advisors would likely be seen as more reliable. There would unlikely be any doubt as to the reliability of the solicitors’ notes, or any suggestion that the confession was induced by alcohol. Further, while it is true that clients may lie to their legal advisors from time to time, it would be unusual for a client to make a false confession to a murder. Therefore, while Benson’s alleged confession to his lawyers is just as much hearsay as his confession to Robertson, it has a better chance of being admitted into evidence due to its enhanced reliability. In conclusion, Dambrot J. found that Brown had satisfied the first element of the threshold test.
21 The motions judge then proceeded to the second requirement of the threshold test: whether the accused had established that he was unable to raise a reasonable doubt about his guilt in any other way. Dambrot J. commented that this question was difficult to answer prior to trial, as there was little basis on which to assess the accused’s jeopardy. Nevertheless, he noted that, if the determination on this issue were delayed until after the Crown’s case, it would have implications for the “orderly conduct of the trial” (para. 12). In the end, Dambrot J. concluded that the second part of the threshold test merely required the trial judge “to consider whether there is, in the particular circumstances of the case, a genuine danger of wrongful conviction” (para. 13). He found that there was such a danger in this case.
22 Next, Dambrot J. considered the first stage of the innocence at stake test, as outlined by this Court at para. 50 of McClure, supra:
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.
Dambrot J. found that Brown had established a sufficient evidentiary basis upon which to conclude that the privileged communication exists. Robertson’s statement to the police suggested that Benson had confessed to Mr. Greenspan and that he, in turn, had recommended Mr. Copeland and Mr. Ducharme to him. In addition, Robertson had produced the business card with instructions purporting to invoke the right to silence in the face of police questioning. Dambrot J. also found that Benson’s confession, if it exists, was capable of raising a reasonable doubt as to Brown’s guilt. Therefore, Brown had satisfied the first element of the innocence at stake test. Dambrot J. accordingly ordered that the relevant files be produced to the court for examination.
B. Ontario Superior Court of Justice, Motions Judge’s Ruling on the Second Stage of the McClure Application, [2001] O.J. No. 3409 (QL)
23 After reviewing the files, Dambrot J. issued a second ruling which dealt with the second stage of the test in McClure, at para. 57:
. . . the trial judge must examine that record to determine whether, in fact, there exists a communication that is likely to raise a reasonable doubt as to the accused’s guilt. The trial judge must ask herself the following question: “Is there something in the solicitor-client communication that is likely to raise a reasonable doubt about the accused’s guilt?” [Emphasis in original.]
After some discussion of whether this stage of the test required him to hear the testimony of counsel who made the notations in the files, Dambrot J. concluded that he could make the determination without amplifying the record.
24 The motions judge found that the evidence in the files was likely to raise a reasonable doubt as to Brown’s guilt. In response to Benson’s counsel’s argument that the evidence “put the accused no further ahead” than did the information already available to him, Dambrot J. stressed “the significance of the source of the information, coming as it does from solicitors’ files, and the potential cumulative effect of evidence coming from multiple sources” (para. 8). In the end, Dambrot J. ordered production of one document and portions of other documents.
V. Issues
25 1. Is McClure applicable?
2. Did Dambrot J. properly apply the threshold and innocence at stake tests in this case?
3. In hearing a McClure application, does the trial judge have discretion to permit amplification of the record?
4. What is the proper scope of a disclosure order made pursuant to a McClure application?
5. If privileged communications are disclosed, what degree of immunity should be provided to the privilege holder?
VI. Analysis
A. Is McClure Applicable?
26 The issue of waiver was raised at the hearing. Particularly, when Benson told Robertson what was said between him and his lawyers, did Benson waive the solicitor-client privilege as to those communications? Counsel for Brown indicated that he intended to raise this issue in the event that he was unsuccessful on the McClure application. This, like many of the issues relating to the threshold test discussed infra, goes to the issue of timing.
27 As stated in McClure and repeated here, this Court views the invasion of the solicitor-client privilege to be serious, with the potential to restrict solicitor-client communications and thereby to undermine the public perception of the protection of the client in the legal system. Piercing solicitor-client privilege should be treated as an extraordinary measure, performed only in accordance with McClure, i.e., as a last resort when innocence is at stake.
28 The tests set out in McClure related to the invasion of solicitor-client privilege. Of primary importance in determining whether to consider a McClure application is whether the information that is sought is in fact protected by solicitor-client privilege. When there is the suggestion that a client may have waived his or her privilege, that issue should be dealt with first. If there is no privilege that bars access to the information, there is no need to proceed further with a McClure application. Here, that issue remains to be decided.
B. The Test in McClure
29 As indicated, the McClure test for infringing solicitor-client privilege is stringent, and will only be satisfied in rare circumstances. The test is found at paras. 47-51 of McClure:
In recognition of the central place of solicitor-client privilege within the administration of justice, 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.
. . .
The innocence at stake test is applied in two stages in order to reflect the dual nature of the judge’s inquiry. 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. At this stage, the judge has to decide whether she will review the evidence.
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. It is evident that the test in the first stage (could raise a reasonable doubt) is different than that of the second stage (likely to raise a reasonable doubt). 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 claimed.
C. Application to the Case at Bar
(1) The Threshold Test
(a) Is the Information Available from Any Other Source?
30 In order to properly apply the threshold test, it is first necessary to determine what is meant by the term “information” in this context. Dambrot J. concluded that the “information” must have some evidentiary value to be considered “available” under this part of the test. Conversely, the appellant suggests that “information” should be given an interpretation consistent with its ordinary meaning, that is, some knowledge of a fact.
31 In order to have any logical and practical force, “information” in the context of a McClure application must be assessed in light of other information that may not be admissible at trial. Otherwise, it would be virtually impossible to succeed on any McClure application. For an accused to believe that a document protected by solicitor-client privilege contains information pertaining to his innocence, he must necessarily have some basis to suspect that such privileged information exists. An accused cannot magically divine that a third party’s solicitor-client communications contain information that will prove his innocence. In almost every case, the accused’s belief will be based on some other fact that has come to his attention. Further, as noted by M. Proulx and D. Layton in Ethics and Canadian Criminal Law (2001), a lawyer cannot disclose privileged communications unless ordered to do so by a court, even though “[o]ften the lawyer will alone be aware of the exculpatory information, meaning that no other interested party has any reason or basis to invoke the court process in order to defeat the privilege” (p. 183).
32 In the present case, Brown became aware of Benson’s alleged confession as a result of Robertson’s statement to the police. Thus, strictly speaking, the “information” sought by Brown is available from another source, Robertson's statement. Benson submitted that, because Robertson’s statement is known by Brown, the information is available even if it is not admissible at trial. This proposition cannot stand. Of necessity, any McClure application will be based on some “information” that a potentially exculpatory third party solicitor-client communication exists. It would be illogical to deny the accused access to the solicitor-client communication solely because he has access to “information” about its existence. The question at this point becomes whether there is alternative information as to the contents of the communication.
33 Moreover, to jump ahead to the innocence at stake test, it is noteworthy that the first stage requires an accused to provide some evidentiary basis for believing that a privileged communication exists that could exculpate him. This evidentiary basis will invariably consist of information concerning the alleged communication that has come to the attention of the accused.
34 McClure allows for the invasion of solicitor-client privilege when necessary to permit an accused to raise a reasonable doubt about his guilt. Necessity is to be considered in the context of a legal proceeding, and can be demonstrated when the information sought in the solicitor-client communication is not otherwise admissible at trial.
35 It is clear that “information” in the context of the threshold question in a McClure application must mean more than simple knowledge of a fact. A McClure application should only succeed on the threshold question if the accused does not have access to other information that will be admissible at trial.
36 Returning to the present appeal, the Court must determine whether the information sought in this case -- Benson’s alleged confession -- is available from any other source. More specifically, did Brown have access to admissible evidence of Benson’s confession from any other source?
37 The record establishes that Brown had another source of information regarding Benson’s confession in the form of Donna Robertson’s testimony. However, Dambrot J. expressed serious concerns about the admissibility of such testimony and about whether, if admissible, it would be believed at trial. In particular, both Benson and Robertson had been drinking at the time of the alleged confession, and their stormy relationship was apparently coming to an end. Moreover, Benson subsequently denied confessing to Robertson. These factors led Dambrot J. to believe that Robertson’s testimony might not be admitted under an exception to the hearsay rule and that, even if admitted, there might be significant challenges to the credibility of her testimony.
38 In contrast, the motions judge believed that Benson’s alleged confession to his solicitors rested on better evidentiary footing. While Dambrot J. acknowledged that it was “legally in no different position than his confession to Robertson” ([2001] O.J. No. 3408 (QL), at para. 10) in that it too was hearsay, he reasoned that it had a better chance of being admitted and believed due to its enhanced reliability. Benson’s confession to his solicitors was not likely to be clouded to the same extent as his confession to Robertson, and the solicitors would have no personal reasons to implicate him in a murder. Moreover, Dambrot J. reasonably thought that it would be unusual for a person to lie to his own solicitors by making a false murder confession.
39 In the end, having interpreted “information” as meaning “potentially substantively usable and reliable evidence” (para. 10), Dambrot J. concluded that the privileged information was not otherwise available.
40 However, with respect, Dambrot J. reached this conclusion prematurely. While there are undoubtedly some obstacles to the admission of Donna Robertson’s evidence, it is not clear that it will be inadmissible. First, there is a significant degree of necessity to her testimony, in that, absent a successful McClure application, it is the only evidence of Benson’s confession, which may exculpate the accused. Second, it may be considered sufficiently reliable to be admitted under an exception to the hearsay rule.
41 Finally, there is some potential that the confession to Robertson may be admissible as a declaration against penal interest. Although this exception to the hearsay rule has historically been reserved for cases where the declarant is deceased or otherwise unavailable, there is a suggestion in the Ontario Court of Appeal case of R. v. Williams (1985), 50 O.R. (2d) 321, that this requirement may be relaxed in some circumstances. In that case, Martin J.A. discussed the United States Supreme Court decision of Chambers v. Mississippi, 410 U.S. 284 (1973), where the court found that confessions made by a third party were admissible, notwithstanding that the third party declarant was available and, in fact, did testify at the accused’s trial. Powell J. noted, at pp. 300-301, that the statements were made “under circumstances that provided considerable assurance of their reliability”, and that, “whatever may be the parameters of the penal-interest rationale, each confession here was in a very real sense self-incriminatory and unquestionably against interest”.
42 While Martin J.A. found that such circumstances did not exist in Williams, he did not disagree with the proposition that the rules of evidence might be relaxed in certain circumstances where necessary to provide a fair trial. Later in the judgment, on a separate issue, Martin J.A. commented that “a court has a residual discretion to relax in favour of the accused a strict rule of evidence where it is necessary to prevent a miscarriage of justice and where the danger against which an exclusionary rule aims to safeguard does not exist” (p. 343 (emphasis added)). This suggests that, where there are some assurances of reliability and where necessary to avoid wrongful conviction, some rules of evidence may be applied with something less than their usual degree of rigour.
43 In any event, these observations are not intended to comment on the validity of any of the above arguments regarding the admissibility of Donna Robertson’s evidence. They are only raised to indicate that the inadmissibility of Robertson’s testimony should not be considered a foregone conclusion.
44 Indeed, if a trial judge allows a McClure application on the basis that another source of the requested information is potentially inadmissible at trial, she runs the risk of her conclusion being subsequently un