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| Patrick Ducharme |
While solicitor-client privilege is a principle of fundamental importance to the administration of justice, the privilege is not absolute. Sometimes the court will order disclosure to protect an accused’s right to full answer and defence. But the test is a stringent one. The appropriate test is the “innocence at stake” test. Solicitor-client privileged information should only be revealed where core issues are involved, directly concerning the guilt of the accused, with a genuine risk of wrongful conviction.
In R. v. Spencer the Supreme Court of Canada found that persons have privacy rights that are reasonable and expected in their communications via the Internet. Consequently, the police obtaining an IP address from an Internet Service Provider in an investigation concerning child pornography, without first seeking a warrant, was found to be a breach of section 8 of the Charter. Again, the court referred to the “totality of circumstances” in assessing, considering and weighing a large number of interrelated factors to conclude that the accused’s subjective expectation of privacy was reasonable.
The above is the an excerpt of Patrick J Ducharme's book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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