Supreme Court hears case involving police wiretap, obstruction charge against Regina lawyer

The Supreme Court of Canada is wading into the case of a Regina lawyer charged with obstruction after police intercepted calls during a drug investigation.

Defence lawyer Sharon Fox was charged in May 2021 after a police wiretap two years earlier captured her speaking with a client. The police were investigating alleged drug trafficking, and Fox was counsel for more than one of the suspects.

Fox was acquitted at trial, and then again at the Saskatchewan Court of Appeal. But since the Court of Appeal decision was not unanimous, the Crown appealed, and the Supreme Court agreed to hear the case.

Saskatoon's Brian Pfefferle is one of the lawyers who represented Fox at the Supreme Court hearing earlier this week. He said the high court's ultimate decision could have far-reaching impacts on the relationship between lawyers and clients.

"We have a situation where the Supreme Court could potentially say that, in certain circumstances, lawyers are able to violate [solicitor-client] privilege," he said in an interview.

"This is an erosion of a fundamental thing in our society, potentially."

'She has been under surveillance'

The Regina Police Service's case against Fox turned on a cellphone recording between Fox and a client. Fox had reached out to tell the man that another client of hers had been under police surveillance for alleged drug trafficking and that search warrants would be executed, Pfefferle said.

A transcript of the Oct. 21, 2019, call was part of the 2022 Court of King's Bench decision following Fox's initial trial. 

"She has been under surveillance," Fox said on the call to her client, referring to another client. "Um, you should know what that means."

Police alleged that amounted to Fox advising the man to destroy evidence.

At her original trial, court heard that police had stopped listening 20 seconds into the call, after Fox had introduced herself as a lawyer, because they had to respect solicitor-client privilege. 

Justice Michael Tochor issued a fiat on Dec. 21, 2020, in which he declared the first two minutes and 25 seconds of the call were not subject to solicitor-client privilege and could be released to the police. The remaining four minutes and 15 seconds were found to be subject to solicitor-client privilege and were to remain sealed.

Tochor provided written reasons for his decision on privilege, which he ordered sealed. 

Left with choice to 'give it up or else': defence

Pfefferle said the decision to allow part of the call into evidence placed Fox in an untenable position. She could not speak to the full call with her client, because that would have broken her professional oath to respect confidentiality.

"She's being forced to either go to war with her client, or put herself on the line without the full truth," he said.

"The police are saying, 'We've got one-third of the conversation. The other two-thirds — give it up or else.'"

The trial judge agreed and acquitted Fox. The Crown appealed and, although she won at the Court of Appeal, one of the three justices dissented, opening the door for the Supreme Court to consider the case.

In addition to Pfefferle, the Supreme Court also heard from a number of groups granted intervener status, including the attorneys general of Alberta and Ontario, the Canadian Civil Liberties Association and the federal director of public prosecutions.

The Supreme Court has reserved its decision, and did not set a date for delivering it.