Appeal decision pending in case of lawyer acquitted of obstruction

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When it comes to the Oct. 25, 2022 decision of Court of King’s Bench Justice Alison Rothery, tthe Crown and Sharon Fox agreed on at least one thing.

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That is, both parties feel the judge who tossed out Crown evidence in Fox’s trial, before she was acquitted of obstruction of justice, didn’t get it quite right.

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But the legal mistakes alleged by one party are markedly different than the legal mistakes alleged by the other, and each is hoping a panel of judge’s in Saskatchewan’s Court of Appeal will see things their way.

As previously reported by the Leader-Post, the original charge brought against the Regina lawyer flowed from an Oct. 21, 2019 telephone conversation she had with a man who was then her client.

The conversation was recorded by police who were surveillance on the man’s phone via a wiretap. Part of that conversation was deemed by the court to be subject to solicitor-client privilege. Part was not, and was recounted within Rothery’s aforementioned decision, which is publicly available online.

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In the published part of the call, Fox discussed with his client another person’s arrest for drug trafficking and the possibility that police would be conducting searches in places that the person had frequented.

“I was her one call to a lawyer, she called me and asked me to pass the message along,” Fox told her client, according to Rothery’s decision.

The Crown indicated Fox based on the conversation, alleging she counseled her client “to remove or destroy potential evidence in a criminal proceeding.”

Fox tested she “believed that she was ethically bound to convey the information to her client that she had received,” according to the decision.

Rothery wrote that because a portion of the lawyer’s conversation with her client was still considered privileged, Fox could not access it to assist her in fighting the charge. Due to this, the judge excluded the non-privileged portion of the call, as she decided it would result in an unfair trial. This led to a Nov. 2, 2022 acquittal, and the subsequent notice of appeal from the Crown roughly two weeks later.

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Legal documents filed with the court since then offer a view of the positions taken by the parties in the appeal.

The Crown contends that Rothery “lost sight” of law settled dictating that in order to support such an exclusion, an accused person must establish “actual prejudice” to make a full answer and defense.

In this case, the judge excluded the evidence because there “might” be something in the unavailable portion of the call that “would or could” assist Fox in her defense, the Crown contends in factum.

Further, the Crown argued Rothery jumped the gun because “it was too early to say there was any ‘unavailable’ evidence in this case.”

The judge “improperly intervened” in suggesting Fox make an application regarding her right to a fair trial “in the absence of any evidence that would support it,” the factum states.

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“The implications of the decision are profound,” it goes on.

“Criminal trials are supposed to be about the search for the truth, not the promotion of fantasy or conspiracy theories supported by nothing more than wild imagination.”

A new trial would be the proper course of action, the Crown submits.

Predictably, Fox asserted through her own factum, prepared by her legal team, that Rothery was correct to exclude the evidence with regard to her right to a fair trial.

Not only would the jury not have been able to hear the full call, Fox wouldn’t have even been allowed to “reference the subject or content of the second part of the conversation when attempting to justify the legality of the first part of the call ,” her factum reads.

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The judge’s mistake, Fox contends, is that she did not exclude the information on an additional basis, that being the defense assertion that the manner in which the call was intercepted was intercepted breached the section of the Charter of Rights and Freedoms that protects against unreasonable search and seizures — a finding Rothery did not make.

Regardless, Fox maintains the position that the evidence excluded “did not disclose a criminal offense,” and she’s asked the court to dismiss the Crown’s appeal.

A hearing was held on the matter earlier this month and the court’s decision has been reserved, to be rendered at a later date.

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