His Majesty the King v. Sharon Fox
Sharon Fox is a criminal defence lawyer whose client was the subject of a wiretap authorization. This authorization did not permit live monitoring of phone calls with a lawyer. During the surveillance operation, a call between Ms. Fox and her client was automatically recorded. A civilian employee also listened to a portion of the call before disconnecting.
A reviewing judge concluded that an initial portion of the telephone call was not subject to solicitor-client privilege and it was released to the Crown. The recording revealed Ms. Fox had informed her client that a third party had been arrested and that the police would likely be obtaining search warrants for places where the third party had been. Ms. Fox was charged with wilfully attempting to obstruct, pervert or defeat the course of justice by interfering in an ongoing police investigation, contrary to s. 139(2) of the Criminal Code.
The trial judge concluded that there was no section 8 Charter breach with respect to the civilian employee listening to her phone conversation. However, she found that ss. 7 and 11(d) of the Charter had been breached due to her inability to access the second, privileged portion of the recording. The entire recording was excluded under s. 24(1) of the Charter, and Ms. Fox was acquitted.
A majority of the Court of Appeal of Saskatchewan affirmed the acquittal and the trial judge’s decision with respect to the ss. 7 and 11(d) breaches. However, the majority also found a s. 8 breachand therefore would have excluded the evidence of the telephone call under s. 24(2) rather than s. 24(1). The dissenting judge concluded that ss. 7 and 11(d) had not been breached but agreed with the majority that there had been a s. 8 breach. The dissenting judge would not have excluded the evidence under s. 24(2) and would have ordered a new trial.
The Crown appealed to the Supreme Court of Canada as of right.