Brandon Harder
Regina Leader-Post
Canada’s highest court has dismissed a Crown application to have its judges examine an additional issue in the case of a Regina defence lawyer.
In 2021, Sharon Fox was charged with obstructing justice. It was alleged she disclosed information in 2019 that affected a police investigation.
She vowed to fight.
“I have been charged for doing my job,” she said in a written statement at the time.
After she was acquitted in November 2022, the Crown filed an appeal to Saskatchewan’s highest court.
The Saskatchewan Court of Appeal upheld the acquittal, but its Feb. 8, 2024 decision was split 2-1.
The split decision meant the Crown could and did appeal to the Supreme Court of Canada (SCC) without having to ask that court’s permission. However, that appeal “by right” is confined to examine a certain set of issues. That portion of the appeal is still moving forward.
The legal issues in Fox’s case are complex. The case involves a conversation between Fox and a client recorded by wiretap, and a civilian monitor who did not stop listening when she was supposed to. It engages the issues of solicitor-client privilege, when and how it can be breached, what constitutes an unreasonable search or seizure, and when evidence that has been “obtained in a manner” that breaches an accused person’s rights should be deemed inadmissible.
On this last point, the Crown filed an application for leave to appeal, requesting that the SCC do a deeper dive. That application was dismissed on Aug. 8.
According to the Crown’s application, in 1988 the SCC ruled that an accused person’s rights had to be breached before evidence was gathered in order for the evidence to be deemed inadmissible. The Crown’s application notes that in 2016, the Ontario Court of Appeal ruled that in some circumstances evidence could be excluded even if the breach happened after the evidence was gathered.
In Fox’s case, the Crown’s application noted, “the Charter violation occurred after the portion of the intercepted communication that formed part of the Crown’s case,” and the Saskatchewan Court of Appeal relied on the aforementioned ruling from the Ontario court in rendering its decision.
The Crown argued that in light of the facts in the Fox case, the Saskatchewan Court of Appeal “erred in finding that the impugned evidence was tainted by a Charter violation that had not yet occurred.”
The Crown argued its application “presents a question of indisputable public importance,” and stressed a need for the SCC to offer clarity on the issue by weighing in on the Ontario case, so as to “have the final word on the matter.”
The defence argued against the Crown’s application, submitting that the SCC had recently ruled in a 2022 decision that there is “no hard and fast rule” when it comes to whether evidence will be considered to have been obtained in a manner that breached a person’s rights.
The Crown’s application was trying to create such a “hard and fast rule,” the defence argued — a notion the Crown rejected.
The defence argued the SCC had mandated a “holistic” approach to the issue, sensitive to the facts of each case, and submitted that the Saskatchewan Court of Appeal decision was reasonable with regard to that issue in Fox’s case.
The SCC does not offer reasons for why it allows or dismisses applications for leave to appeal.
bharder@postmedia.com
