R. v. Brown

R. v. Brown

The appeal is allowed and the production order set aside because the motions judge erred in prematurely invading third-party solicitor-client privilege: the McClure threshold was not satisfied absent a prior determination on waiver and on the admissibility of alternative evidence (Donna Robertson's testimony);...

Source-derived case information.

Citation
2002 SCC 32
Parties
Appellant: David Benson; Respondent: Jason D. Brown; Respondent: Her Majesty the Queen; Intervener: Federation of Law Societies of Canada; Intervener: Todd Ducharme; Intervener: Peter Copeland; Intervener: Criminal Lawyers' Association (Ontario)
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
28 March 2002
Procedural Posture
Criminal Appeal / On Appeal to the Supreme Court of Canada From the Ontario Superior Court of Justice
Outcome
Appeal allowed; order for production by motions judge set aside
Legal Topics
Solicitor Client Privilege, Mc Clure Test, Full Answer and Defence, Self Incrimination, Disclosure, Hearsay Admissibility, Use and Derivative Use Immunity
Source Language
english
Criminal Law Evidence Constitutional Law Solicitor Client Privilege Mc Clure Test Full Answer and Defence Self Incrimination Disclosure +2 more

Source-derived case record

Summary, issues, holding and outcome

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Parties

David Benson

Appellant

Jason D. Brown

Respondent

Her Majesty the Queen

Respondent

Federation of Law Societies of Canada

Intervener

Todd Ducharme

Intervener

Peter Copeland

Intervener

Criminal Lawyers' Association (Ontario)

Intervener

Procedural Posture

Criminal Appeal / On Appeal to the Supreme Court of Canada From the Ontario Superior Court of Justice

Legal Issues

  1. 1 Whether the McClure test was properly applied to order disclosure of third-party solicitor-client materials
  2. 2 Whether the information sought was available from another source and whether the accused could raise a reasonable doubt otherwise (threshold question)
  3. 3 Proper scope and timing of a McClure application and whether the record may be amplified between stages

Ratio Decidendi

The appeal is allowed and the production order set aside because the motions judge erred in prematurely invading third-party solicitor-client privilege: the McClure threshold was not satisfied absent a prior determination on waiver and on the admissibility of alternative evidence (Donna Robertson's testimony); McClure remains a stringent, last-resort test and privilege holders whose communications are disclosed must receive use and derivative use immunity but not transactional immunity.

Court Disposition

Appeal allowed; order for production by motions judge set aside

Orders

  • Order for production made by Dambrot J. is set aside