When Wiretaps Cross The Line

A live wiretap, a lawyer on the line, and a rule that said “stop listening”—which police ignored. We dive into a rare Supreme Court of Canada decision where constitutional safeguards, solicitor-client privilege, and the search for truth collide. The stakes are real: can a lawyer use privileged communications to defend themselves when facing criminal allegations, and what happens when the state breaches explicit limits on surveillance?

We walk through why solicitor-client privilege is foundational, who actually owns it, and how the Court carved a tight “innocence at stake” exception without gutting client confidence. You’ll hear how a two-step threshold protects privilege in most cases while safeguarding against wrongful convictions. Then we examine the Charter lens under section 24(2): why the entire recording was tossed, how the seriousness of the breach mattered, and why the absence of reprimand or corrective steps by authorities weighed heavily against admission.

From there, we turn to a different kind of wall: Crown immunity. A survivor’s civil claim alleging sexual assault by jail guards in 1972 confronted the hard edge of history. Before the 1974 Crown Proceedings Act, the province couldn’t be sued, and the courts have held that the change is not retrospective. We unpack why a late-stage defence amendment was allowed, why a novel “duty of care” theory against opposing counsel failed, and how statutory limits can leave profound harms without civil recourse. It’s a sobering picture of how legal architecture protects rights, constrains power, and sometimes forecloses remedies.

If you value smart, practical analysis of criminal law, Charter rights, and civil liability against the state, you’ll find clarity and context here. Follow the show, share this episode with a friend who loves legal deep dives, and leave a review telling us where you think privilege should bend—or hold firm.

Follow this link for a transcript of the show and links to the cases discussed. 

Chapters

• 0:00 Wiretap Rules And A Seven-Minute Call
• 3:30 Solicitor-Client Privilege Explained
• 6:40 The Innocence At Stake Exception
• 10:45 Excluding Illegally Obtained Evidence
• 13:40 No Reprimand, Bigger Breach
• 15:45 Shift To Crown Immunity Case
• 18:20 Suing The Province And 1974 Barrier

Transcript

Adam Stirling: 0:13

So that's the items on the defended today. And themselves applies to the lawyer here?

Michael Mulligan: 0:26

Unfortunately, yes. So this was a Supreme Court of Canada case that is an interesting fact pattern. And it was a criminal charge brought against a lawyer who was alleged to have engaged in advice that would amount to obstruction of justice. And so the background of it is that the police were conducting a drug investigation, drug trafficking investigation, not with respect to the lawyer, but apparently with respect to one of the lawyer's clients. And in the course of that drug investigation, the police were able to obtain wiretap authorization. And as is not uncommon in Canada, when there is a wiretap authorized, where there's some reason to think that, for example, a person might be speaking to a lawyer on the phone, right, to getting legal advice, there was a condition put in the authorization that the judge made for the wiretap specifying that the wiretap was to be live monitored, so like not just record everything and we'll go through it later, but instead have a human being listening to the uh intercepted telephone communications. And one of the other conditions, which is also not uncommon, uh is a condition saying that look, when this person who's live monitoring and recording the uh phone calls, uh when they uh uh have any reason to believe that the person being spoken to is a lawyer, they are to stop listening and stop recording. Okay? So that's what was in place. Now in this particular case, what happened is indeed there was a civilian police employee who was doing this live monitoring, um, and the civilian employee uh uh was uh listening to an intercepted phone call, and it became readily apparent that the person making the call was speaking to the lawyer who eventually became the subject matter of this case. But rather than discontinuing listening, the civilian police employee kept listening and kept recording, uh, and recorded a uh phone call that went on for some about just shy of seven minutes. Now, during that phone call uh that was recorded and recorded in a way contrary to the terms of that order, the uh it was alleged that the lawyer uh told this person about uh a upcoming search or search that might be conducted, and it was alleged that the lawyer had said something to encourage the person to get rid of evidence that might be detected. Now, that's not proper, obviously, or maybe you should not obviously, that's not proper. A lawyer is not your partner in crime. Your lawyer is there to give you legal advice, not tell you to do things that like hide evidence or uh uh do things of that sort. That's not how it works. Now, the there were two uh issues uh that arose at the original trial in this case that went all the way to the Supreme Court of Canada. The first issue was with respect to uh this interception which occurred contrary to the conditions that were imposed. And the first issue the issue there was uh while the crown acknowledged that this was a breach of the lawyer's privacy rights because there were the warrant specifically for the wiretap specifically said you cannot record these things, and as soon as it becomes clear the person speaking to a lawyer who's being the who is the subject of the investigation, you've got to stop listening and stop recording. And the police just didn't do that. Uh and so on that basis, the uh judge had found at trial uh that that was a breach that was acknowledged and uh ruled that the uh recording, all of it, um, should be excluded on constitutional grounds, not be usable. Now, the Crown was appealing that, but the other very interesting issue that arose here is the issue of whether the lawyer has the ability to waive solicitor-client privilege to allow, in this case, the entire conversation to be used. Because what was happening is that the the judge at the original trial concluded that the first two and a half minutes or so of this phone call, or two minutes and fifteen seconds, they concluded was not solicitor-client communication, but the remainder of the phone call was some four minutes and fifteen seconds. So there are some things that were required. The judge said, Well, that's not solicitor client. The crown can use that subject to that charter argument, but the rest of the call, no lawyer, you cannot use that. And here's the thing solicitor client privilege is a privilege that belongs to the client, not to the lawyer. A lawyer can't waive that on behalf of their client, only the client can. And here, the client wasn't waiving that. And so the other issue was for the lawyer saying, Look, I want the whole phone call to be played. Uh, I want to be able to use the rest of it. Presumably, it gave some context or some further description about what the person should or shouldn't do. Uh, and so the issue then arose, can the lawyer do that? Uh, because the judge found that that was solicitor-client privileged communication. The person calling this lawyer was looking for legal advice. That's what was being provided, and the lawyer wasn't allowed to use it. And so the other interesting advice the other interesting issue is all the way to the Supreme Court of Canada on what is what are the limits to solicitor-client privilege, and can the lawyer use it to defend in this case herself? Now that's unclear. Now, I should pause here just for a moment so listeners know, there are very few things which are there is privilege in, and many people don't appreciate that. Like in the criminal context, there is no privilege over things said to doctors, priests, in most cases, spouses any longer. That was amended a number of years ago. Most special privilege, or much of it is now gone. And so it's important for people to know, first of all, if you're saying something to a counselor, doctor, priest, or someone else, they could well be required to show up in court and testify about what you said to them. That is uh new news to a lot of people. Uh, and in fact, there was a uh murder case in Victoria a number of years ago now where there's a woman who went to law school a few years, uh I think a couple of few years uh after me. Um she was charged with murdering her husband, uh, and in the course of the trial, her counselor decided to come forward and give evidence about how she said she wanted to kill her husband uh during the some counseling session, right? And so all of those other sorts of professionals may be discreet, but there's nothing privileged there, and in some cases, listeners should know that there are obligations on some of those people affirmatively to go and report the person. So, for example, in the case of doctors, uh which can include things like um psychologists or psychiatrists, um there can be a positive duty to report somebody with respect to things like child abuse. And so, uh don't count on there being any privilege if you're doing any of those things. You could well be reported to the police. Now, the law does take seriously solicitor-client privilege. And here, the eventual issue that the Supreme Court of Canada dealt with was the issue of whether an exception called the innocence at stake exception applies to lawyers who want to be able to use something which was said to them in the course of a solicitor-client relationship, that's providing advice, to defend themselves in a criminal case. And that concept of innocence at stake as an exception to uh uh otherwise an almost sacrosanct privilege, uh has been applied in another context, which is informer privilege, informant privilege. Like you have somebody who's a confidential police informant, the law recognizes almost absolute privilege over that person's identity. But there's an exception to that, the exception being innocence at stake. And so if you could establish that look, I appreciate the person's a police informant, and if they're identified, you know, they could be killed or something for doing that. But let's say they are the eyewitness to what took place, and that eyewitness could be the key to establishing that the accused person is innocent. That is an exception uh to that form of privilege. And the Supreme Court of Canada found that that same principle of innocence at stake, in this case for the lawyer, can be an exception to solicitor client privilege. But to make sure that that's only uh uh used in cases where it's necessary, the Supreme Court of Canada set out there's a two-part test. Like, first of all, uh the lawyer would have to show that the communication could raise a reasonable doubt about their guilt if they're charged with something. Um, and then if that satisfied at a second stage, then the judge would examine the communications themselves to determine whether in fact it would likely raise a reasonable doubt. And only in that circumstance could it be allowed. And so you can imagine other circumstances. Let's say, for example, a client in the course of getting legal advice says something like, and I'm gonna frame you for the murder, or something of that sort, right? You can well imagine how the lawyer might be like, well, hold on, I have now been framed for the murder. I'd really like that. I'd really like to be able to tell everyone about how the client said they were gonna frame me and then did. And so now we have this authority from the Supreme Court of Canada saying that that uh does exist as an exception to solicitor client privilege. And here, on this case, both on that ground, which could have also applied, but uh the Supreme Court of Canada ultimately analyzed and focused on the reason why the judge, first of all, uh found the entire thing to be inadmissible on the basis that the police uh obtained this recording contrary to the order that was put in place at the time the wiretap was uh was authorized. And on that basis as well found that uh that breach was a very serious one, uh, given that it was a uh you know breach of a specific term of this wiretap authorization, um, and on a what's called a 24-2 analysis, like analyzing whether evidence which is obtained in an unconstitutional manner uh or in breach of a constitutional right should be excluded, found that this was a very serious breach, and when applying uh the sort of inquiry that has to be weighed up when deciding whether evidence would be admitted, including things like the seriousness of the state conduct, uh the nature of the charter right that was infringed, and the society's interest in adjudicating a case on a merits, on its merits, uh, on that basis uh as well, found that this statement was properly not admitted at all, not the first two minutes, none of it. Um one of the interesting things that the Supreme Court of Canada commented on, and this could be an issue uh in cases in the future, is the Supreme Court of Canada commented on the fact that despite having engaged in this uh improper continuing to monitor and record this phone call with the lawyer, in addition to doing that, that the uh police, Crown, uh there was no indication of any reprimand or ameliorative efforts or anything done to prevent either to deal with the person who did that or to try to prevent that in the future. And uh that was one of the factors which the Supreme Court of Canada pointed to as making it uh more serious that this breach occurred in contradiction of the terms of the wiretap uh authorization, and uh that nothing was done in terms of reprimand or to ameliorate uh the uh uh that sort of thing from occurring in the future. So very interesting case on the Supreme Court of Canada, uh, and uh it demonstrates both um just how careful uh courts are to preserve solicitor client privilege and the fact that that belongs to the client, not the lawyer. The lawyer can't just choose to breach it, but it points out how there can be a narrow exception where it's necessary for the lawyer to establish they they are innocent uh in in order to uh uh uh use communication that would have otherwise been protected. So that's the latest from the Supreme Court of Canada on solicitor client privileged communication uh and when a lawyer might be able to use it to prove that they are in fact innocent.

Adam Stirling: 12:35

Fascinating. We'll continue with legally speaking right after this. All right, we're back on the air here at 70s. We continue legally speaking with Michael Mulligan for Mulligan Defense Lawyer. What happened?

Michael Mulligan: 12:58

Well, this is uh really interesting to know about, I think, because uh I think many people now are used to the idea that you could go and sue the provincial government. Now, that was not always the case. Uh in fact, the default provision in common law jurisdictions is that the crown has immunity from being sued. Um, and that changed in 1974, August 1st, 1974, as a result of an act called the Crown Proceedings Act, which is what authorizes you to sue the Crown. Now, uh this particular case is, as you indicated, it's a case involving a claim of sexual assault. Uh and it was brought only a few years ago. And first of all, listeners should know that there isn't a limitation period for a civil claim for sexual assault. And that is so because there could be a wide variety of reasons why a victim of a sexual assault may not be in a position to bring a claim in a prompt way as might be expected for other civil actions. And so there's no time limit for doing that. So that wasn't a problem. But this particular person who was suing, his claim was based on an allegation that in 1972, when he was 16 or 17 years old, uh, he was in O'Calla prison. Uh and his allegation was that two of the jail guards there sexually assaulted him, causing extreme negative, life-altering trauma and effects that he suffered ever since. Uh, and so he finally brought this claim. And the uh claim started along, and uh there was no uh initial objection brought uh to this claim, which dated from 1972, and indeed the uh council for the province of British Columbia conducted an examination for discovery of this fellow. An examination for discovery in the civil context requires a person to show up uh and uh conduct a uh uh answer questions about the uh claims all that went along, and there was no issue about uh the Crown Proceedings Act or 1972 or 1974 until after the examination for uh discovery concluded. Now, what is at least alluded to in this decision is it may be that at the examination for discovery it was firmed up or made clear that this was from 1972. And so that then led to the uh province of British Columbia uh applying to amend its uh defense of this case to claim that to say that I'm terribly sorry, but uh your claim is from 1972. You can't sue the crown prior to 1974, you're out of luck. Um and first of all, the fellow objected to that amendment saying, well, you know, I'm not agreeing to that. If you that was your position, why didn't you do that? Why didn't you say that initially? Why do you put me through this examination for discovery? Uh and then the uh application was brought by the province to allow the amendment to add this defense saying we're immune, you can't sue us for what your jail guards are alleged to have done in 1972. Uh and then so the uh man who was suing amended his claim to add a second cause of action, claiming that the province uh head and the lawyer acting for the province uh head on the province's behalf uh caused uh committed an additional uh tort uh by breaching what was an alleged duty of care to the plaintiff to ensure that during the course of the litigation they didn't cause unnecessary psychological trauma. Uh and so the claim was unamended to say, look, uh uh you re-traumatized me by unnecessarily examining me about this sexual abuse I suffered in 1972, I now want to sue you for that. Uh and so this came to a head because the province of British Columbia brought an application to strike out this man's claim in the entirety, in its entirety, on the basis that there was no genuine need for a trial here because this was hopeless, it couldn't succeed. Uh and so in the course of deciding that, uh the judge hearing the case had to first of all determine was this claim uh barred, the actual claim against the provincial guards barred uh because of that uh crown immunity that existed prior to 1974. Uh and in that regard, the uh judge hearing it looked at some prior cases. The BC Court of Appeal has uh previously considered the issue about whether the Crown Proceedings Act was like retrospective, like did it apply to did it allow you to sue for things before it came into effect? And the Court of Appeal on that ground has found previously, no, it didn't. Uh and in fact, there's a case brought it was brought in BC uh brought by uh a group that had their children apprehended uh from them prior to the Crown Proceedings Act, where they were seeking to sue for the harm caused by it, um, and that was denied on the basis that it just came prior to 1974 as a Duke of Parents case. Um, and that was a result of uh children being removed from their care in the 1950s, and the Court of Appeal found no, you're not allowed to sue for that. You're just out of luck. Uh and so uh found that uh the claim was hopeless with respect to the province because it occurred prior to 1974.

unknown: 18:09

Wow.

Michael Mulligan: 18:09

And then the judge had to deal with this novel claim, saying that uh the province had re-traumatized him and that the province and the lawyer owed a duty of care to him. And on that ground, the judge analyzed whether that is could be a novel basis for a civil claim, but ultimately concluded that no, it couldn't, uh, on the basis that the lawyer defending somebody does not owe a duty of care to the opposing party when they're doing their their duty to defend the civil claim, including doing things like conducting examination for discovery. And so on that basis as well, the judge found that this claim had no hope. And the net result, regardless of whether this man was as a teenager abused, sexually abused by the two provincial jail guards, uh, he cannot proceed. Uh and so that's uh the import of something occurring prior to the Crown Proceedings Act. Uh, and uh important to know that uh the f the your uh ability to sue the province is a gift from the province uh brought in by legislation, and without that you'd be left in a position where you could not do that. So that's the uh latest in terms of uh the implication of Crown immunity uh and uh why that Crown Proceedings Act is the basis for being able to sue the province at all.

Adam Stirling: 19:22

Michael Mulgan with Mulgan Defense Lawyers, legally speaking, during the second half of our second hour every Thursday. Thanks so much. Pleasure as always. Thanks so much. Always great to be here. All right, quick break, back after this.