R. v. Bennett

R. v. Bennett

The conversation between the accused and duty counsel is solicitor-client privileged, but the accused's testimony that criticized the adequacy, brevity and circumstances of that consultation constituted either an implicit waiver of privilege or triggered the principle of fairness such that the Crown may call duty counsel; the Crown may elicit only limited, non-substantive evidence necessary to resolve the s.10(b) issue and determine whether exclusion under s.24(2) is required.

Citation
2002 NSPC 26
Parties
Prosecution: Her Majesty the Queen; Accused: James L. Bennett
Court
Nova Scotia Provincial Court
Jurisdiction
Canada
Judgment Date
6 September 2002
Procedural Posture
Criminal Impaired Driving / Voir Dire (charter S.10(b) & S.24(2) Application)
Outcome
Crown permitted to call duty counsel to testify limited to non-substantive matters relevant to whether meaningful consultation occurred; privilege deemed waived or yielded by fairness/necessity
Legal Topics
Right to Counsel S.10(b), Exclusion of Evidence S.24(2), Waiver of Solicitor Client Privilege, Duty Counsel, Scope of Crown Examination
Source Language
English
Criminal Law Charter Law Evidence Solicitor Client Privilege Right to Counsel S.10(b) Exclusion of Evidence S.24(2) Waiver of Solicitor Client Privilege Duty Counsel +1 more

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Parties

Her Majesty the Queen

Prosecution

James L. Bennett

Accused

Procedural Posture

Criminal Impaired Driving / Voir Dire (charter S.10(b) & S.24(2) Application)

Legal Issues

  1. 1 Whether the telephone conversation between the accused and duty counsel was subject to solicitor-client privilege
  2. 2 Whether the accused, by testifying about the conversation, implicitly waived that privilege
  3. 3 If privilege not waived, whether fairness or necessity requires reception of duty counsel's evidence

Ratio Decidendi

The conversation between the accused and duty counsel is solicitor-client privileged, but the accused's testimony that criticized the adequacy, brevity and circumstances of that consultation constituted either an implicit waiver of privilege or triggered the principle of fairness such that the Crown may call duty counsel; the Crown may elicit only limited, non-substantive evidence necessary to resolve the s.10(b) issue and determine whether exclusion under s.24(2) is required.

Court Disposition

Crown permitted to call duty counsel to testify limited to non-substantive matters relevant to whether meaningful consultation occurred; privilege deemed waived or yielded by fairness/necessity

Orders

  • Crown may call duty counsel to testify
  • Duty counsel shall not be questioned about substantive conversations regarding the alleged offences