Solicitor-Client Privilege: Use of Improperly Disclosed Privileged Information
Information improperly disclosed to the trier of fact in breach of solicitor-client privilege cannot be used by the trier of fact to support a conviction.
R. v. Olusoga, 2019 ONCA 565.
The proper functioning of the adversarial
system depends on the assurance, given to every accused, that communications
with their lawyer for the purpose of receiving legal advice are, subject to
certain exceptions, privileged.
In Olusoga, defence counsel, in explaining to the trial
judge why he had not put the appellant’s version of events to the complainant
during her testimony (as was required by the rule in Browne v. Dunn),
divulged that he expected that the appellant would testify to a different
version of events. This disclosure was
in breach of solicitor-client privilege.
The trial judge’s
use of that privileged information in his assessment of the appellant’s
credibility occasioned a miscarriage of justice.
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