In a Crown appeal from an acquittal for attempted obstruction of justice, the Court addressed whether an accused lawyer may invoke the innocence-at-stake exception to seek access to privileged client communications.
The Court held the exception is available to accused lawyers and that the McClure framework can be adapted, but found it was premature for lower courts to find a fair-trial breach before such an application was brought.
On the Crown’s concession of a s. 8 breach arising from unauthorized monitoring of a lawyer-client call, the majority applied s. 24(2) and excluded the non-privileged portion of the intercepted call.
The majority concluded the seriousness of state conduct and privacy impact outweighed society’s strong interest in adjudication on the merits.
The appeal was dismissed, with dissenting reasons favouring admission of the evidence and a new trial.
