The Supreme Court of Canada has upheld Saskatchewan criminal defence lawyer Sharon Fox’s acquittal on a charge of attempting to obstruct justice, ruling that evidence from a phone call with her client should be excluded because a civilian monitor breached the safeguards in a wiretap authorization.
The February 6 decision in R. v. Fox, 2026 SCC 4, dismissed the Crown’s appeal by a seven-to-two majority. The court also confirmed that a lawyer accused of a crime can invoke the strict innocence-at-stake exception to solicitor-client privilege to seek access to a client’s protected communications for the lawyer’s own defence.
Those were separate questions. The Supreme Court rejected the lower courts’ conclusion that Fox’s inability to access the privileged portion of the call already established an unfair trial. Her acquittal nevertheless remained in place because the majority excluded the non-privileged portion under section 24(2) of the Canadian Charter of Rights and Freedoms, based on the breach of her privacy rights.
A recorded call and a disputed prosecution
The case arose from an RCMP cocaine-trafficking investigation near Estevan in 2019. A judge authorized interception of several people’s calls, including those of Fox’s client, identified in the public reasons as A.Y. The authorization required monitors to stop listening once they reasonably believed a lawyer was participating, with limited checks permitted to determine whether the lawyer remained on the call.
On October 21, 2019, Fox called A.Y. after another person arrested in the investigation contacted her for legal assistance. Two RCMP officers initially listened but stopped after identifying Fox as a lawyer. A civilian monitor subsequently listened live for three minutes and 49 seconds, including part of the conversation later found to be privileged. The full call was automatically recorded.
A judge later ruled that the first two minutes and 25 seconds were not privileged and could be accessed by police. The remaining four minutes and 15 seconds were protected and could not be accessed without a further court order. The written reasons for that privilege ruling were sealed and were not before the Supreme Court.
The Crown alleged that Fox’s remarks warned her client of possible searches and counselled him to remove or destroy evidence. Fox maintained that she was fulfilling her professional duty to keep her client informed and passing on information at the arrested person’s request. Those competing positions were not resolved by a finding that she committed the alleged offence.
At trial, the judge excluded the non-privileged part under section 24(1), reasoning that Fox could not defend herself fairly without access to the protected portion and could not invoke the privilege exception against her own client. The Crown called no further evidence and Fox was acquitted. A majority of the Saskatchewan Court of Appeal upheld that result and also found a privacy breach warranting exclusion under section 24(2).
A strict exception remains available to accused lawyers
Justice Mahmud Jamal, writing for the Supreme Court majority, explained that solicitor-client privilege belongs to the client and is nearly absolute. It protects candid legal advice and confidence in the justice system. A lawyer’s obligations do not, however, extinguish the lawyer’s constitutional right to make full answer and defence to a criminal charge.
The established test from R. v. McClure can be adapted to that situation. Before the court considers the two-stage innocence-at-stake inquiry, an accused must show that the information is unavailable from another source and that they are otherwise unable to raise a reasonable doubt. Convenience or the prospect of a more complete defence is insufficient.
At the first stage, there must be an evidentiary basis that the protected communication could raise a reasonable doubt. An accused lawyer familiar with the communication can attest to that without revealing its contents. At the second stage, the judge examines the communication and must find that it is likely to raise a reasonable doubt, a more demanding standard.
The safeguards remain substantial. The client must have a voice in the process, disclosure must be limited to what is necessary, and the lawyer cannot simply reveal protected material to their own defence counsel at the outset. The judge can examine the communication privately, with procedures tailored to protect privilege. The Crown cannot automatically obtain material disclosed to the defence, and the client is entitled to protection against its use, or use of evidence derived from it, in a subsequent case against them.
All nine judges agreed that Fox could pursue that process. Since she had not brought a McClure application, the lower courts had acted prematurely in finding that her fair-trial rights were breached and excluding the evidence on that basis. The Supreme Court did not determine that the protected portion would exonerate her or order it disclosed.
Privacy breach justified excluding the evidence
The Crown conceded at the Supreme Court that the monitor’s conduct breached Fox’s section 8 protection against unreasonable search and seizure. The majority accepted that concession and assessed exclusion under section 24(2), which asks whether admitting evidence obtained in a rights-infringing manner would bring the administration of justice into disrepute.
The automatic recording meant the monitor’s improper listening had not caused the evidence to exist. That did not end the analysis: the breach and the recording were sufficiently connected in time and context as parts of the same wiretapping operation. The absence of a causal connection nevertheless mattered when assessing the impact of the breach.
The majority accepted that the monitor acted inadvertently, but found her conduct seriously negligent. She had been trained to stop listening to calls involving lawyers and had heard remarks identifying Fox’s professional role. The monitoring team’s response aggravated the breach: the record showed no reprimand or corrective effort to prevent repetition. The majority raised systemic concerns without finding evidence of widespread or recurring violations.
Fox had a high expectation of privacy in her conversation with a client. The majority also emphasized the potential chilling effect on legal advice when the state intrudes on confidential lawyer-client communications. Accounting for the recording’s independent availability, it assessed the impact on her protected interests as moderately favouring exclusion.
The majority acknowledged the strong public interest in trying the charge on its merits. The recording was reliable, central to the prosecution and concerned a serious allegation against a lawyer. It rejected the appeal court majority’s reliance on the perceived weakness of the evidence: reliability matters to this exclusion analysis, but the ultimate strength of the case is for the trial’s decision-maker.
On balance, the seriousness of the breach and its impact outweighed that strong interest in admission. The majority expressly rejected automatic exclusion for every breach of a wiretap term protecting privilege; its conclusion depended on the circumstances of this case.
Two judges would have ordered a new trial
Justice Michelle O’Bonsawin, joined by Justice Malcolm Rowe, would have admitted the evidence and ordered a new trial. They emphasized the isolated, inadvertent nature of the breach, the safeguards already in place and the fact that the recording was independently discoverable. They gave greater weight to having a serious obstruction allegation against a lawyer decided on its merits.
The majority’s dismissal left the acquittal intact. The decision both enforces the privacy safeguards attached to investigative wiretaps and confirms that an accused lawyer must use a controlled judicial process, rather than assume client privilege either prevents a defence or permits unrestricted disclosure.
