Smith v. Jones, [1999] 1 S.C.R. 455
James Jones Appellant
v.
John Smith Respondent
and
Southam Inc. Intervener
Indexed as: Smith v. Jones
File No.: 26500.
1998: October 8; 1999: March 25.
Present: Lamer C.J. and L’Heureux‑Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.
on appeal from the court of appeal for british columbia
Privilege ‑‑ Solicitor‑client privilege ‑‑ Public safety exception ‑‑ Psychiatrist’s report and opinion ‑‑ Psychiatrist retained by defence counsel to assist in preparing accused’s defence ‑‑ Psychiatrist’s report indicating that accused posed continuing danger to society ‑‑ Accused pleading guilty and defence counsel informing psychiatrist that sentencing judge would not be informed of his concerns about accused ‑‑ Circumstances and factors to be considered in determining whether solicitor‑client privilege should be set aside in interest of protecting public safety.
Courts ‑‑ Proceedings ‑‑ Openness ‑‑ Action on exception to solicitor‑client privilege ‑‑ Court file sealed ‑‑ Hearing in Supreme Court public but members of press and public subject to publication ban ‑‑ Supreme Court holding public safety exception to solicitor‑client privilege applicable ‑‑ Publication ban lifted and file unsealed, except parts of affidavit subject to solicitor‑client privilege which do not fall within public safety exception.
An accused was charged with aggravated sexual assault on a prostitute. His counsel referred him to a psychiatrist hoping that it would be of assistance in the preparation of the defence or with submissions on sentencing in the event of a guilty plea. Counsel informed the accused that the consultation was privileged in the same way as a consultation with him would be. During his interview with the psychiatrist, the accused described in considerable detail his plan to kidnap, rape and kill prostitutes. The psychiatrist informed defence counsel that in his opinion the accused was a dangerous individual who would, more likely than not, commit future offences unless he received sufficient treatment. The accused later pled guilty to the included offence of aggravated assault. The psychiatrist phoned defence counsel to inquire about the status of the proceedings and learned that his concerns about the accused would not be addressed in the sentencing hearing. The psychiatrist commenced this action for a declaration that he was entitled to disclose the information he had in his possession in the interests of public safety. He filed an affidavit describing his interview with the accused and his opinion based upon the interview. The trial judge ruled that the public safety exception to the solicitor‑client privilege and doctor‑patient confidentiality released the psychiatrist from his duties of confidentiality and concluded that he was under a duty to disclose to the police and the Crown both the statements made by the accused and his opinion based upon them. The Court of Appeal allowed the accused’s appeal but only to the extent that the mandatory order was changed to one permitting the psychiatrist to disclose the information to the Crown and police. Since the beginning of these proceedings at first instance, the file has been sealed. This Court dismissed a motion for a hearing in camera but the members of the press and of the public present at the hearing were subject to a publication ban.
Held (Lamer C.J. and Major and Binnie JJ. dissenting): The appeal should be dismissed and the order of the Court of Appeal is affirmed subject to the following directive. The file will be unsealed and the ban on the publication of the contents of the file is removed, except for those parts of the psychiatrist’s affidavit which do not fall within the public safety exception.
Per L’Heureux-Dubé, Gonthier, Cory, McLachlin, Iacobucci and Bastarache JJ.: Both parties made their submissions on the basis that the psychiatrist’s report was protected by solicitor‑client privilege, and it should be considered on that basis. The solicitor‑client privilege is a principle of fundamental importance to the administration of justice. It is the highest privilege recognized by the courts. However, despite its importance, the privilege is not absolute and remains subject to limited exceptions, including the public safety exception. While only a compelling public interest can justify setting aside solicitor‑client privilege, danger to public safety can, in appropriate circumstances, provide such a justification.
Three factors should be taken into consideration in determining whether public safety outweighs solicitor‑client privilege: (1) Is there a clear risk to an identifiable person or group of persons? (2) Is there a risk of serious bodily harm or death? (3) Is the danger imminent? These factors must be defined in the context of each situation and different weights will be given to each, and to the various aspects of each, in any particular case. Under the “clarity” factor, it is important, as a general rule, that a group or person must always be ascertainable. In some situations, great significance might be given to the clear identification of a particular individual or group of intended victims, even if the group of intended victims is large. At the same time, a general threat of death or violence directed to everyone in a city or community, or anyone with whom the person may come into contact, may be too vague to warrant setting aside the privilege. However, if the threatened harm to the members of the public was particularly compelling, extremely serious and imminent, it might well be appropriate to lift the privilege. All the surrounding circumstances will have to be taken into consideration in every case. The “seriousness” factor requires that the threat be such that the intended victim is in danger of being killed or of suffering serious bodily harm. With respect to the “imminence” factor, the nature of the threat must be such that it creates a sense of urgency. This sense of urgency may be applicable to some time in the future. Depending on the seriousness and clarity of the threat, it will not always be necessary to impose a particular time limit on the risk. It is sufficient if there is a clear and imminent threat of serious bodily harm to an identifiable group, and if this threat is made in such a manner that a sense of urgency is created. If after considering all appropriate factors it is determined that the threat to public safety outweighs the need to preserve solicitor‑client privilege, then the privilege must be set aside. When it is, the disclosure should be limited so that it includes only the information necessary to protect public safety.
In this case, the solicitor‑client privilege must be set aside for the protection of members of the public. A reasonable observer, given all the facts for which solicitor‑client privilege is sought, would consider the potential danger posed by the accused to be clear, serious, and imminent. According to the psychiatrist’s affidavit, the accused suffered from a paraphiliac disorder with multiple paraphilias ‑‑ in particular sexual sadism ‑‑ and drug abuse difficulty. In his interview, the accused clearly identified the potential group of victims ‑‑ prostitutes in a specific area ‑‑ and described, in considerable detail, his plan and the method for effecting the attack. The evidence of planning and the prior attack on a prostitute similar to that which was planned emphasize the potential risk of serious bodily harm or death to prostitutes in that area. The combination of all these elements meets the factor of clarity, and the potential harm ‑‑ a sexually sadistic murder ‑‑ clearly meets the factor of seriousness. Lastly, although no evidence was adduced as to whether the psychiatrist considered that a future attack was imminent, two important elements indicate that the threat of serious bodily harm was imminent. First, the accused breached his bail conditions by continuing to visit the specific area where he knew prostitutes could be found. Second, after his arrest and while awaiting sentencing, he would have been acutely aware of the consequences of his actions.
The disclosure of the psychiatrist’s affidavit was properly limited at first instance to those portions of it which indicated that there was an imminent risk of death or serious bodily harm to an identifiable group comprising prostitutes located in a specific area. To that extent, the solicitor‑client privilege attaching to the psychiatrist’s affidavit must be set aside. In the result, the file will be unsealed and the ban on the publication of its contents is removed, except for those parts of the psychiatrist’s affidavit which do not fall within the public safety exception. The psychiatrist’s affidavit as edited at first instance will be made public together with all the other material in the Court’s file.
Per Lamer C.J. and Major and Binnie JJ. (dissenting): The confidentiality of the solicitor‑client privilege, which extends to communications between clients and experts retained by their counsel for the purpose of preparing a defence, must, in exceptional circumstances, yield to the interests of public safety. Since the entire factual basis from which the psychiatrist’s knowledge and opinion of the accused stem is the oral history provided by the accused, the accused’s communications, and the expert’s opinion arising from them, are privileged subject to the public safety exception.
While the danger in this case is sufficiently clear, serious and imminent to justify some warning to the relevant authorities, two principles should guide the analysis of the scope of the disclosure: (1) the breach of privilege must be as narrow as possible; and (2) an accused’s right to consult counsel without fear of having his words used against him at trial is vital to our conception of justice. In this case, the trial judge permitted disclosure of parts of the psychiatrist’s affidavit beyond those portions which indicate an imminent risk of serious harm or death, and could result in conscriptive evidence, such as the accused’s confession, being revealed unnecessarily. A limited exception which does not include conscriptive evidence against the accused would better address the immediate concern for public safety while respecting the importance of the privilege. The immediate concern for public safety is to ensure that the accused not harm anyone. This can be accomplished by permitting the psychiatrist to warn the relevant authorities that the accused poses a threat to prostitutes in a specific area. However, he should only disclose his opinion and the fact that it is based on a consultation with the accused. Specifically, he should not disclose any communication from the accused relating to the circumstances of the offence, nor should he be permitted to reveal any of the personal information which the trial judge excluded from his original order for disclosure.
This approach will foster a climate in which dangerous individuals are more likely to disclose their disorders, seek treatment and pose less danger to the public. As the facts of this case illustrate, the accused was only diagnosed and made aware of the possibility of treatment because he felt secure in confiding to the psychiatrist. If that confidence is undermined, then these individuals will not disclose the danger they pose, they will not be identified, and public safety will suffer.
Cases Cited
By Cory J.
Not followed: R. v. Derby Magistrates’ Court, [1995] 4 All E.R. 526; approved: R. v. Dunbar and Logan (1982), 68 C.C.C. (2d) 13; considered: Solosky v. The Queen, [1980] 1 S.C.R. 821; Tarasoff v. Regents of University of California, 551 P.2d 334 (1976); Thompson v. County of Alameda, 614 P.2d 728 (1980); Brady v. Hopper, 570 F.Supp. 1333 (1983); W. v. Egdell, [1990] 1 All E.R. 835; referred to: Anderson v. Bank of British Columbia (1876), 2 Ch. D. 644; R. v. Gruenke, [1991] 3 S.C.R. 263; Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860; R. v. Seaboyer, [1991] 2 S.C.R. 577; A. (L.L.) v. B. (A.), [1995] 4 S.C.R. 536; R. v. McCraw, [1991] 3 S.C.R. 72.
By Major J. (dissenting)
R. v. Perron (1990), 54 C.C.C. (3d) 108, [1990] R.J.Q. 752; In re Shell Canada Ltd., [1975] F.C. 184, 22 C.C.C. (2d) 70 (sub nom. Re Director of Investigation and Research Shell and Canada Ltd.); Solosky v. The Queen, [1980] 1 S.C.R. 821; R. v. Hebert, [1990] 2 S.C.R. 151; R. v. Jones, [1994] 2 S.C.R. 229; R. v. L. (C.K.) (1987), 62 C.R. (3d) 131; R. v. Poslowsky, [1996] B.C.J. No. 2550 (QL); R. v. King, [1983] 1 All E.R. 929; R. v. Ward (1981), 3 A. Crim. R. 171; City & County of San Francisco v. Superior Court, 231 P.2d 26 (1951); Calcraft v. Guest, [1898] 1 Q.B. 759; Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860; Harmony Shipping Co. S.A. v. Davis, [1979] 3 All E.R. 177; Lyell v. Kennedy (No. 2) (1883), 9 App. Cas. 81; Susan Hosiery Ltd. v. Minister of National Revenue, [1969] 2 Ex. C.R. 27; Thorson v. Jones (1973), 38 D.L.R. (3d) 312; M. (A.) v. Ryan, [1997] 1 S.C.R. 157; Thompson v. County of Alameda, 614 P.2d 728 (1980); R. v. P. (M.B.), [1994] 1 S.C.R. 555; R. v. Oakes, [1986] 1 S.C.R. 103.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 7, 10(b), 11(c), (d).
Authors Cited
British Columbia. Professional Conduct Handbook, revised May 31, 1998.
Note. “The Future Crime or Tort Exception to Communications Privileges” (1964), 77 Harv. L. Rev. 730.
Ontario. Law Society of Upper Canada. Professional Conduct Handbook. Toronto: Law Society of Upper Canada, 1998.
APPEAL from a judgment of the British Columbia Court of Appeal, [1998] B.C.J. No. 3182 (QL), allowing in part the accused’s appeal from a judgment of Henderson J. ordering a psychiatrist to disclose his report to the Crown. Appeal dismissed, Lamer C.J. and Major and Binnie JJ. dissenting.
Leslie J. Mackoff, for the appellant.
Christopher E. Hinkson, Q.C., and Elizabeth A. Campbell, for the respondent.
Paul B. Schabas and Matthew J. Halpin, for the intervener.
The reasons of Lamer C.J. and Major and Binnie JJ. were delivered by
//Major J.//
Major J. (dissenting) --
I. Introduction
1 I agree with Justice Cory’s summation of the facts giving rise to this appeal and with his conclusion that the confidentiality of the solicitor-client privilege must, in exceptional circumstances of public safety, yield to the public good.
2 The point of departure arises in the restriction each of us places on the scope of disclosure.
3 In my opinion a limited exception which does not include conscriptive evidence against the accused would address the immediate concern for public safety in this appeal while respecting the importance of the privilege. I do not read Cory J.’s reasons as imposing that limitation.
4 This approach will in my view foster a climate in which dangerous individuals are more likely to disclose their disorders, seek treatment and pose less danger to the public.
II. The Principles Underlying Solicitor-Client Privilege
5 In Canada, everyone is entitled to retain legal counsel to defend and protect their interests. This right is particularly important in criminal proceedings. The rationale for protection of the solicitor-client relationship was clearly stated by Jackett C.J. in Re Shell Canada Ltd., [1975] F.C. 184, 22 C.C.C. (2d) 70 (C.A.) (sub nom. Re Director of Investigation and Research and Shell Canada Ltd.), at p. 193 F.C., and adopted by Dickson J. (as he then was) for this Court in Solosky v. The Queen, [1980] 1 S.C.R. 821, at p. 834:
. . . the protection, civil and criminal, afforded to the individual by our law is dependent upon his having the aid and guidance of those skilled in the law untrammelled by any apprehension that the full and frank disclosure by him of all his facts and thoughts to his legal adviser might somehow become available to third persons so as to be used against him.
6 If the confidences clients share with counsel were not protected by privilege, it seems apparent that accused persons would hesitate to confide in their legal advisors, who in turn could not adequately represent them. The starting point of Canadian justice is that no one, no matter how horrible the alleged offence, be denied a full defence. Nor will they be prejudiced by retaining counsel and freely discussing the case with him or her.
7 In the criminal context principles embodied in the rules of privilege have gained constitutional protection by virtue of the enshrinement of the right to full answer and defence, the right to counsel, the right against self-incrimination and the presumption of innocence in ss. 7, 10(b), 11(c) and 11(d) of the Canadian Charter of Rights and Freedoms; R. v. Hebert, [1990] 2 S.C.R. 151; R. v. Jones, [1994] 2 S.C.R. 229, at pp. 246-55.
8 Each of these rights support the extension of privilege to communications between clients and experts retained by their counsel for the purpose of preparing a defence. Together, they demonstrate the reasons for denying any use of solicitor-client communications against an accused in any legal proceeding. To deny the protection of solicitor-client privilege to the confidential communications of the accused to those intimately involved in the preparation of his defence would frustrate these rights. For these reasons, the communications between an accused and his counsel, made in furtherance of his or her defence, are accorded the highest level of protection and confidentiality.
III. Extension of Solicitor-Client Privilege to Experts
9 In this case the privilege is claimed not for the client’s conversations with his lawyer, but those with the psychiatrist whom his lawyer retained as an expert. Tradition and case law support the extension of this privilege to include communications, by conversation or otherwise, between the accused and the expert in the same way as in the traditional solicitor-client relationship.
10 Courts in Canada, Australia, the United Kingdom and the United States have all concluded that client communications with third-party experts retained by counsel for the purpose of preparing their defence are protected by solicitor-client privilege: see R. v. Perron (1990), 54 C.C.C. (3d) 108, [1990] R.J.Q. 752 (C.A.); R. v. L. (C.K.) (1987), 62 C.R. (3d) 131 (Ont. Dist. Ct.); R. v. Poslowsky, [1996] B.C.J. No. 2550 (QL) (Prov. Ct.); R. v. King, [1983] 1 All E.R. 929 (C.A.); R. v. Ward (1981), 3 A. Crim. R. 171 (N.S.W. Ct. Cr. App.).
11 In Perron, supra, the Crown was permitted to call and examine a psychiatrist who was retained by the defence but not called as a witness. The Quebec Court of Appeal held that the substance of the accused’s communications with the psychiatrist were privileged and therefore inadmissible. The court adopted the opinion set out in City & County of San Francisco v. Superior Court, 231 P.2d 26 (1951), at p. 31, per Traynor J. of the Supreme Court of California, who held that:
The privilege of confidence would be a vain one unless its exercise could be thus delegated. A communication, then, by any form of agency employed or set in motion by the client is within the privilege.
. . .
Thus, when communication by a client to his attorney regarding his physical or mental condition requires the assistance of a physician to interpret the client’s condition to the attorney, the client may submit to an examination by the physician without fear that the latter will be compelled to reveal the information disclosed. [Emphasis in original.]
12 The court concluded that communications between an accused and psychiatrist come within the scope of the solicitor-client relationship and create the solicitor-client privilege. A privilege that goes to the heart of the ability of an accused to seek counsel and present a full answer and defence to the charges proffered against him.
13 The Quebec Court of Appeal concluded in Perron, supra, at p. 113 C.C.C.:
[translation] When counsel requires the services of an expert in order to help him better prepare his defence, he acts within the scope of his mandate. It is the interest of his client which compels counsel to confer on a specialist the charge of evaluating the case and it follows that the accused must be able to undergo the evaluation in the same climate of confidence and in complete confidentiality as if he were communicating with counsel.
14 This reasoning is persuasive, and confirms that conversations with defence experts, such as psychiatrists, fall within the solicitor-client privilege and attract permanent and substantive privilege: see Calcraft v. Guest, [1898] 1 Q.B. 759 (C.A.), Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860.
IV. Is the Substance of the Psychiatrist’s Opinion Privileged?
15 The respondent asserts that even if Mr. Jones’s communications are privileged, Dr. Smith’s opinion based on those communications is not privileged, on the basis of the long-established maxim that there is no property in a witness: see Harmony Shipping Co. S.A. v. Davis, [1979] 3 All E.R. 177 (C.A.), per Lord Denning, M.R., at pp. 180‑81. In the present case the entire factual basis from which the witness’s knowledge and opinion of the accused stem is the oral history provided by the accused. These communications and opinions arising from them are privileged subject to the public safety exception.
16 In Ward, supra, at p. 190, the New South Wales Court of Criminal Appeal held the psychiatrist’s evidence to be beyond the reach of the Crown:
The first substantial question to be considered is whether Dr. Barclay was retained by the appellant for the purpose of forming an opinion, as a psychiatrist, as to the appellant’s mental condition so that that opinion might, if the appellant desired, be used for the purpose of the forthcoming trial of the appellant. If he was so retained then what the appellant had said to him was the subject of legal professional privilege and unless the accused waived the privilege, Dr. Barclay’s account of what he had been told by the appellant when interviewed and the opinion which he formed from that account, could not be put before the jury. [Emphasis added.]
17 The judgment of Lord Blackburn in Lyell v. Kennedy (No. 2) (1883), 9 App. Cas. 81 (H.L.), at p. 87, cited with approval by Jackett P. in Susan Hosiery Ltd. v. Minister of National Revenue, [1969] 2 Ex. C.R. 27, at pp. 34-35, provides additional support for this conclusion:
. . . it seems to me the plain reason and sense of the thing is that as soon as you say that the particular premises are privileged and protected, it follows that the mere opinion and belief of the party from those premises should be privileged and protected also. . . . when the interrogatory is simply “what is the belief which you have formed from reading that brief?” [i.e., the privileged information] it seems to me . . . to follow that you cannot ask that question.
18 In Thorson v. Jones (1973), 38 D.L.R. (3d) 312 (B.C.S.C.), the client identified himself, in strict confidence, to his solicitor as the driver responsible for an unsolved hit-and-run. The court held that the client’s identity constituted privileged information and was not to be revealed.
V. Purpose and Application of the Public Safety Exception
19 I agree with Cory J. that the standard of a “clear, serious and imminent” danger is the appropriate test for disclosure of privileged communications. There are compelling public policy reasons for limiting disclosure to cases of clear and imminent danger. The record confirms that Mr. Jones only disclosed his secret plans because his lawyer had properly advised him that anything he said to Dr. Smith would be confidential. If Cory J. is correct in holding that, in cases where the necessity test is met, the privilege is overridden to the extent of allowing disclosure of self-incriminating evidence, the result might endanger the public more than the public safety exception would protect them.
20 If defence counsel cannot freely refer clients, particularly dangerous ones, to medical or other experts without running a serious risk of the privilege being set aside, their response will be not to refer clients until after trial, if at all. This could result in dangerous people remaining free on bail for long periods of time, undiagnosed and untreated, presenting a danger to society.
21 The chilling effect of completely breaching the privilege would have the undesired effect of discouraging those individuals in need of treatment for serious and dangerous conditions from consulting professional help. In this case the interests of the appellant and more importantly the interests of society would be better served by his obtaining treatment. This Court has recognized that mental health, including those suffering from potentially dangerous illnesses, is an important public good: see M. (A.) v. Ryan, [1997] 1 S.C.R. 157, at para. 27.
22 Although the appellant did not go to Dr. Smith to seek treatment, it is obvious that he is more likely to get treatment when his condition is diagnosed than someone who keeps the secret of their illness to themselves. It seems apparent that society will suffer by imposing a disincentive for patients and criminally accused persons to speak frankly with counsel and medical experts retained on their behalf.
23 As appealing as it may be to ensure that Mr. Jones does not slip back into the community without treatment for his condition, completely lifting the privilege and allowing his confidential communications to his legal advisor to be used against him in the most detrimental ways will not promote public safety, only silence. For this doubtful gain, the Court will have imposed a veil of secrecy between criminal accused and their counsel which the solicitor-client privilege was developed to prevent. Sanctioning a breach of privilege too hastily erodes the workings of the system of law in exchange for an illusory gain in public safety.
VI. Application to the Facts
24 While I agree with Cory J. that the danger in this case is sufficiently clear, serious and imminent to justify some warning to the relevant authorities, I find that the balance between the public interests in safety and the proper administration of justice is best struck by a more limited disclosure than the broader abrogation of privilege he proposes. In particular, Cory J. endorses the trial judge’s limitation of Dr. Smith’s affidavit to those portions which indicate an imminent risk of serious harm or death. In the result, conscriptive evidence such as the accused’s confession can be disclosed. In my opinion, the danger posed by the accused can be adequately addressed by the expression of that opinion by Dr. Smith without disclosing the confession.
25 Two principles should guide the analysis of the scope of this disclosure. First, the breach of privilege must be as narrow as possible; Descôteaux v. Mierzwinski, supra, at p. 875. Disclosure is justified only when it can actually accomplish something in the public interest, such as preventing injury or death. As the authors of “The Future Crime or Tort Exception to Communications Privileges” (1964), 77 Harv. L. Rev. 730, at p. 732, observe, “the [American] Canons of Professional Ethics make it clear that the attorney is released from his duty to maintain confidence in order ‘to prevent the act or protect those against whom it is threatened’”. (Emphasis added.) See also Thompson v. County of Alameda, 614 P.2d 728 (Cal. 1980), at p. 736.
26 Second, an accused’s right to consult counsel without fear of having his words used against him at trial is vital to our conception of justice. See R. v. P. (M.B.), [1994] 1 S.C.R. 555, per the Chief Justice, at p. 577:
Perhaps the single most important organizing principle in criminal law is the right of an accused not to be forced into assisting in his or her own prosecution.
27 All of the information upon which the respondent formed his concern about future conduct of the accused, emanated from the accused himself, and would not generally have been available. Our jurisprudence does not allow the conscription of an accused’s own words against him: see R. v. Jones, supra.
28 The immediate concern for public safety in this case is to ensure that the appellant not harm anyone. The solicitor-client privilege is a fundamental common law right of Canadians. That right must be interpreted in light of the Charter which provides for the right of an accused to counsel. Anytime such a fundamental right is eroded the principal of minimal impairment must be observed. See R. v. Oakes, [1986] 1 S.C.R. 103. This can be accomplished by a limited disclosure of the psychiatrist’s opinion. Courts are obligated to craft the narrowest possible exception to privilege which accomplishes this purpose. Accordingly, Dr. Smith should be permitted to warn the relevant authorities (i.e., the Attorney General and sentencing judge) that Mr. Jones poses a threat to prostitutes in the Vancouver area. However, Dr. Smith should only disclose his opinion and the fact that it is based on a consultation with Mr. Jones. Specifically, he should not disclose any communication from the accused relating to the circumstances of the offence, nor should he be permitted to reveal any of the personal information which the trial judge excluded from his original order for disclosure.
29 I agree with Cory J. that in rare cases where an individual poses an instant risk such that even an ex parte application to the court is not possible, the person reviewing the otherwise privileged information may issue a timely warning to the police. Otherwise, the scope and timing of disclosures should be dealt with by the courts on a case-by-case basis.
30 The public interest in cases such as this is twofold, and requires not only that the dangerous individual is prevented from harming anyone, but that they obtain treatment if needed. Appealing as it might be to force individuals in Mr. Jones’s position into treatment through the criminal process, it is unlikely to happen. If there is a risk that conscriptive evidence from the mouth of the accused can be used against him, the defence bar is going to be reluctant to refer dangerous clients to the care of experts. Disclosure will be discouraged and treatment will not occur.
31 As the facts of this case illustrate, Mr. Jones was only diagnosed and made aware of the possibility of treatment because he felt secure in confiding to Dr. Smith. If that confidence is undermined, then these individuals will not disclose the danger they pose, they will not be identified, and public safety will suffer.
VII. Scope of this Decision
32 Cory J. relies on American jurisprudence regarding the private law duty of physicians to warn potential victims of their dangerous patients. With respect I think these cases are of limited usefulness, as they do not engage any of the legal and constitutional principles which underlie the solicitor-client privilege. In the absence of that issue in this case I will not comment on the existence or scope of the duty to warn in private doctor-client relationships.
33 This decision relates only to a limited exception to the solicitor-client privilege created by these facts, and does not extinguish that privilege. It pertains only to the prevention of imminent perils and the ability of legal and medical professionals to warn the police and potential victims of clear, serious and pressing dangers in the manner outlined. It follows that nothing in this decision is intended to decide whether any of the privileged communications made between Mr. Jones and Dr. Smith are admissible at any judicial proceedings. Those are issues to be determined by the presiding judge as they arise.
VIII. Disposition
34 Accordingly, I would allow the appeal without costs, confirm the entirety of Mr. Jones’s communications to Dr. Smith to be privileged, but permit Dr. Smith to give his opinion and diagnosis of the danger posed by Mr. Jones.
The judgment of L’Heureux-Dubé, Gonthier, Cory, McLachlin, Iacobucci and Bastarache JJ. was delivered by
//Cory J.//
35 Cory J. -- The solicitor‑client privilege permits a client to talk freely to his or her lawyer secure in the knowledge that the words and documents which fall within the scope of the privilege will not be disclosed. It has long been recognized that this principle is of fundamental importance to the administration of justice and to the extent it is feasible, it should be maintained. Yet when public safety is involved and death or serious bodily harm is imminent, the privilege should be set aside. This appeal must determine what circumstances and factors should be considered and weighed in determining whether solicitor-client privilege should be set aside in the interest of protecting the safety of the public.
I. Factual Background
36 Solicitor-client privilege is claimed for a doctor’s report. Pending the resolution of that claim the names of the parties involved have been replaced by pseudonyms. The appellant, “James Jones”, was charged with aggravated sexual assault of a prostitute. His counsel referred him to a psychiatrist, the respondent, “John Smith”, for a forensic psychiatric assessment. It was hoped that it would be of assistance in the preparation of the defence or with submissions on sentencing in the event of a guilty plea. His counsel advised Mr. Jones that the consultation was privileged in the same way as a consultation with him would be. Dr. Smith interviewed Mr. Jones for 90 minutes on July 30, 1997. His findings are contained in an affidavit he submitted to the judge of first instance. They set out the basis for his belief that Mr. Jones poses a continuing danger to the public.
37 Dr. Smith reported that Mr. Jones described in considerable detail his plan for the crime to which he subsequently pled guilty. It involved deliberately choosing as a victim a small prostitute who could be readily overwhelmed. He planned to have sex with her and then to kidnap her. He took duct tape and rope with him, as well as a small blue ball that he tried to force into the woman’s mouth. Because he planned to kill her after the sexual assault he made no attempt to hide his identity.
38 Mr. Jones planned to strangle the victim and to dispose of her body in the bush area near Hope, British Columbia. He was going to shoot the woman in the face before burying her to impede identification. He had arranged time off from his work and had carefully prepared his basement apartment to facilitate his planned sexual assault and murder. He had told people he would be going away on vacation so that no one would visit him and he had fixed dead bolts on all the doors so that a key alone would not open them.
39 Mr. Jones told Dr. Smith that his first victim would be a “trial run” to see if he could “live with” what he had done. If he could, he planned to seek out similar victims. He stated that, by the time he had kidnapped his first victim, he expected that he would be “in so deep” that he would have no choice but to carry out his plans.
40 On July 31, Dr. Smith telephoned Mr. Jones’s counsel and informed him that in his opinion Mr. Jones was a dangerous individual who would, more likely than not, commit future offences unless he received sufficient treatment.
41 On September 24, 1997, Mr. Jones pled guilty to aggravated assault and the matter was put over for sentencing. Sometime after November 19, Dr. Smith phoned Mr. Jones’s counsel to inquire about the proceedings. On learning that the judge would not be advised of his concerns, Dr. Smith indicated that he intended to seek legal advice and shortly thereafter commenced this action.
42 The in camera hearing took place in December 1997. Dr. Smith filed an affidavit describing his interview with Mr. Jones and his opinion based upon the interview. Mr. Jones filed an affidavit in response. On December 12, 1997, Henderson J. ruled that the public safety exception to the law of solicitor‑client privilege and doctor‑patient confidentiality released Dr. Smith from his duties of confidentiality. He went on to rule that Dr. Smith was under a duty to disclose to the police and the Crown both the statements made by Mr. Jones and his opinion based upon them. Henderson J. ordered a stay of his order to allow for an appeal and Mr. Jones promptly appealed the decision.
43 The Court of Appeal allowed the appeal but only to the extent that the mandatory order was changed to one permitting Dr. Smith to disclose the information to the Crown and police: [1998] B.C.J. No. 3182 (QL). The order was stayed to permit Mr. Jones to consider a further appeal. It also directed that pseudonyms be used, that proceedings be heard in camera and that the file remain sealed pending further order. This order is discussed in greater detail below. The sentencing of Mr. Jones on the aggravated assault charge was adjourned pending the outcome of this appeal.
II. Analysis
A. The Nature of the Solicitor‑Client Privilege
44 Both parties made their submissions on the basis that the psychiatrist’s report was protected by solicitor‑client privilege, and it should be considered on that basis. It is the highest privilege recognized by the courts. By necessary implication, if a public safety exception applies to solicitor‑client privilege, it applies to all classifications of privileges and duties of confidentiality. It follows that, in these reasons, it is not necessary to consider any distinctions that may exist between a solicitor-client privilege and a litigation privilege.
45 The solicitor‑client privilege has long been regarded as fundamentally important to our judicial system. Well over a century ago in Anderson v. Bank of British Columbia (1876), 2 Ch. D. 644 (C.A.), at p. 649, the importance of the rule was recognized:
The object and meaning of the rule is this: that as, by reason of the complexity and difficulty of our law, litigation can only be properly conducted by professional men, it is absolutely necessary that a man, in order to prosecute his rights or to defend himself from an improper claim, should have recourse to the assistance of professional lawyers, . . . to use a vulgar phrase, that he should be able to make a clean breast of it to the gentleman whom he consults with a view to the prosecution of his claim, or the substantiating of his defence . . . that he should be able to place unrestricted and unbounded confidence in the professional agent, and that the communications he so makes to him should be kept secret, unless with his consent (for it is his privilege, and not the privilege of the confidential agent), that he should be enabled properly to conduct his litigation.
46 Clients seeking advice must be able to speak freely to their lawyers secure in the knowledge that what they say will not be divulged without their consent. It cannot be forgotten that the privilege is that of the client, not the lawyer. The privilege is essential if sound legal advice is to be given in every field. It has a deep significance in almost every situation where legal advice is sought whether it be with regard to corporate and commercial transactions, to family relationships, to civil litigation or to criminal charges. Family secrets, company secrets, personal foibles and indiscretions all must on occasion be revealed to the lawyer by the client. Without this privilege clients could never be candid and furnish all the relevant information that must be provided to lawyers if they are to properly advise their clients. It is an element that is both integral and extremely important to the functioning of the legal system. It is because of the fundamental importance of the privilege that the onus properly rests upon those seeking to set aside the privilege to justify taking such a significant step.
47 As Lamer C.J. stated in R. v. Gruenke, [1991] 3 S.C.R. 263, at p. 289:
The prima facie protection for solicitor‑client communications is based on the fact that the relationship and the communications between solicitor and client are essential to the effective operation of the legal system. Such communications are inextricably linked with the very system which desires the disclosure of the communication.
48 The solicitor‑client privilege was originally simply a rule of evidence, protecting communications only to the extent that a solicitor could not be forced to testify. Yet now it has evolved into a substantive rule. As Dickson J. (as he then was) wrote in Solosky v. The Queen, [1980] 1 S.C.R. 821, at p. 836, “Recent case law has taken the traditional doctrine of privilege and placed it on a new plane. Privilege is no longer regarded merely as a rule of evidence which acts as a shield to prevent privileged materials from being tendered in evidence in a court room.”
49 Lamer J. (as he then was) expanded on this statement in Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860, at p. 875, when he discussed the content of this substantive rule:
It is quite apparent that the Court in [Solosky] applied a standard that has nothing to do with the rule of evidence, the privilege, since there was never any question of testimony before a tribunal or court. The Court in fact, in my view, applied a substantive rule, without actually formulating it, and, consequently, recognized implicitly that the right to confidentiality, which had long ago given rise to a rule of evidence, had also since given rise to a substantive rule.
It would, I think, be useful for us to formulate this substantive rule, as the judges formerly did with the rule of evidence; it could, in my view, be stated as follows:
1. The confidentiality of the communications between solicitor and client may be raised in any circumstances where such communications are likely to be disclosed without the client’s consent.
2. Unless the law provides otherwise, when and to the extent that the legitimate exercise of a right would interfere with another person’s right to have his communications with his lawyer kept confidential, the resulting conflict should be resolved in favour of protecting the confidentiality.
3. When the law gives someone the authority to do something which, in the circumstances of the case, might interfere with that confidentiality, the decision to do so and the choice of means of exercising that authority should be determined with a view to not interfering with it except to the extent absolutely necessary in order to achieve the ends sought by the enabling legislation.
4. Acts providing otherwise in situations under paragraph 2 and enabling legislation referred to in paragraph 3 must be interpreted restrictively.
50 As the British Columbia Court of Appeal observed, solicitor‑client privilege is the privilege “which the law has been most zealous to protect and most reluctant to water down by exceptions”. Quite simply it is a principle of fundamental importance to the administration of justice.
B. Limitations on Solicitor‑Client Privilege
51 Just as no right is absolute so too the privilege, even that between solicitor and client, is subject to clearly defined exceptions. The decision to exclude evidence that would be both relevant and of substantial probative value because it is protected by the solicitor‑client privilege represents a policy decision. It is based upon the importance to our legal system in general of the solicitor‑client privilege. In certain circumstances, however, other societal values must prevail.
(1) Innocence of the Accused
52 One exception to solicitor‑client privilege was set out in R. v. Dunbar and Logan (1982), 68 C.C.C. (2d) 13 (Ont. C.A.). Martin J.A., speaking for the court, ruled that solicitor‑client privilege must yield to the right of accused persons to fully defend themselves. At p. 44 he wrote:
No rule of policy requires the continued existence of the privilege in criminal cases when the person claiming the privilege no longer has any interest to protect, and when maintaining the privilege might screen from the jury information which would assist an accused.
53 The House of Lords recently considered this issue in R. v. Derby Magistrates’ Court, [1995] 4 All E.R. 526. It held that solicitor‑client privilege was absolute and permanent. It could not be set aside even when to do so would allow an accused to present a full answer and defence to a criminal charge. With great respect, I prefer the reasoning of Martin J.A. Despite the strength and importance of the privilege, it remains subject to certain well‑defined and limited exceptions. These exceptions are not foreclosed and may be expanded in the future, for example, to protect national security. However, the question of further exceptions need not be considered in these reasons.
54 It is significant and worthy of observation that Dunbar and Logan, supra, was cited with approval by this Court in R. v. Seaboyer, [1991] 2 S.C.R. 577, at p. 607 (per McLachlin J.), and in A. (L.L.) v. B. (A.), [1995] 4 S.C.R. 536 (per L’Heureux‑Dubé J.). At para. 69 of A. (L.L.) v. B. (A.):
When the enforcement of a privilege means that the accused will be limited as to his or her right to make full answer and defence to criminal accusations, this Court has strongly tended to favour disclosure. . . . Even the solicitor‑client privilege, which has been elevated to a “fundamental civil and legal right” . . . will be overridden to allow the accused to make full answer and defence to criminal charges. . . . [Citations omitted.]
(2) Criminal Communications
55 A second exception to solicitor‑client privilege was set out in Descôteaux v. Mierzwinski, supra. Lamer J. for the Court, held that communications that are criminal in themselves (in this case, a fraudulent legal aid application) or that are intended to obtain legal advice to facilitate criminal activities are not privileged. At p. 893 this appears:
There are certain exceptions to the principle of the confidentiality of solicitor‑client communications, however. Thus communications that are in themselves criminal or that are made with a view to obtaining legal advice to facilitate the commission of a crime will not be privileged, inter alia.
(3) The Public Safety Exception
56 In Solosky, supra, an inmate in a federal penitentiary asked this Court to make a declaration that all properly identified correspondence between solicitors and clients would be forwarded to their destinations without being opened. The inmates’ privilege was in conflict with the Penitentiary Act, R.S.C. 1970, c. P‑6, and with Regulation 2.18 of the Penitentiary Service Regulations, which allowed the institution’s director to censor any correspondence to the extent the censor considered necessary.
57 In his decision, Dickson J. ruled that the inmates’ privilege must yield when the safety of members of the institution is at risk. In his reasons at p. 840, he implicitly limited the solicitor‑client privilege. He wrote:
The result, as I see it, is that the Court is placed in the position of having to balance the public interest in maintaining the safety and security of a penal institution, its staff and its inmates, with the interest represented by insulating the solicitor‑client relationship. Even giving full recognition to the right of an inmate to correspond freely with his legal adviser, and the need for minimum derogation therefrom, the scale must ultimately come down in favour of the public interest. [Emphasis added.]
In certain circumstances, therefore, when the safety of the public is at risk the solicitor‑client privilege may be set aside.
58 Courts in other jurisdictions have considered the issue of public safety exceptions to privilege, particularly in doctor‑patient relationships. Obviously these cases do not deal with solicitor‑client privilege. However, they do support the position that other privileges are subject to the public interest. Moreover, they assist in determining the approach that should be taken to the consideration of the issue of privilege. Further these cases are useful in exploring certain issues that arise in this case, for example, how the victim class can be identified and how specific the potential victim or class of victims must be.
59 I would emphasize that these cases are not being examined with a view to establishing a tort duty on doctors to disclose confidential information when a public safety concern arises. That issue is not before the Court and must not be decided without a factual background and the benefit of argument.
(a) American Decisions
60 In Tarasoff v. Regents of University of California, 551 P.2d 334 (1976), the Supreme Court of California considered whether psychologists and psychiatrists have a duty to warn a potential victim when they were or should have been aware that a patient presented a serious danger to an identifiable person.
61 In that case a patient under the care of the respondents, a psychologist and two psychiatrists employed by the University of California, confessed to his psychologist his intention to kill a young girl, who was readily identifiable from his description. The psychologist contacted the police who questioned and briefly detained the patient but released him because he appeared rational. Two months later, the patient killed the girl. Her parents brought an action against the therapists for failure to warn them of the danger to their daughter.
62 Tobriner J. of the California Supreme Court at p. 340 wrote:
When a therapist determines, or pursuant to the standards of his profession should determine, that his patient presents a serious danger of violence to another, he incurs an obligation to use reasonable care to protect the intended victim against such danger. The discharge of this duty may require the therapist to take one or more of various steps, depending upon the nature of the case. Thus it may call for him to warn the intended victim or others likely to apprise the victim of the danger, to notify the police, or to take whatever other steps are reasonably necessary under the circumstances.
63 He went on to observe that the public interest in maintaining access to mental health treatment had to be balanced against the public interest in safety. At p. 346:
We recognize the public interest in supporting effective treatment of mental illness and in protecting the rights of patients to privacy..., and the consequent public importance of safeguarding the confidential character of psychotherapeutic communication. Against this interest, however, we must weigh the public interest in safety from violent assault. [Citation omitted.]
At p. 347, he concluded:
We conclude that the public policy favoring protection of the confidential character of patient‑psychotherapist communications must yield to the extent to which disclosure is essential to avert danger to others. The protective privilege ends where the public peril begins. [Emphasis added.]
64 In Thompson v. County of Alameda, 614 P.2d 728 (Cal. 1980), county officials were aware of the violent propensities of a juvenile delinquent in their care. These violent propensities were directed toward young children. The county released the juvenile delinquent from custody into the care of his mother. Within 24 hours, he had sexually assaulted and murdered the five‑year‑old who lived next door. The parents of the victim sued the county for, inter alia, failing to warn them. The Supreme Court dismissed their suit.
65 In reaching its decision, the majority of the court held that Tarasoff, supra, was distinguishable because the victim in Tarasoff “was the known and specifically foreseeable and identifiable victim of the patient’s threats” (p. 734). Richardson J. explained and distinguished the decision in Tarasoff in this way at p. 734:
[W]e made clear that the therapist has no general duty to warn of each threat. Only if he “does in fact determine, or under applicable professional standards reasonably should have determined, that a patient poses a serious danger of violence to others, (does he bear) a duty to exercise reasonable care to protect the foreseeable victim of that danger.”
. . .
Unlike Johnson [v. State of California, 447 P.2d 352 (Cal. 1968)] and Tarasoff, plaintiffs here have alleged neither that a direct or continuing relationship between them and County existed through which County placed plaintiffs’ decedent in danger, nor that their decedent was a foreseeable or readily identifiable target of the juvenile offender’s threats. [Underlining added; italics added by Richardson J.]
The court thus explicitly limited the duty to warn to cases in which the danger to a particular victim was foreseeable. At p. 735, Richardson J. wrote:
Bearing in mind the ever present danger of parole violations, we nonetheless conclude that public entities and employees have no affirmative duty to warn of the release of an inmate with a violent history who has made nonspecific threats of harm directed at nonspecific victims. [Emphasis in original.]
In California, the duty to warn was thus restricted to cases in which specific threats of harm were directed against specific victims.
66 This position was reiterated in Brady v. Hopper, 570 F.Supp. 1333 (D. Colo. 1983). James Brady and two others were suing Dr. John Hopper, John Hinckley’s psychiatrist, in tort for the injuries they suffered during Hinckley’s attempt to assassinate President Reagan. The court dismissed their claim, finding that Hinckley had made no threats upon which a duty to warn could be based. Moore J. wrote at p. 1339, “Nowhere in the complaint are there allegations that Hinckley made any threats regarding President Reagan, or indeed that he ever threatened anyone.” It was determined that the duty to warn did not arise until such time as both the threat and the possible victim could be identified. Something more than a merely speculative risk of harm to unidentifiable persons was necessary (at p. 1338):
[O]nce the patient verbalizes his intentions and directs his threats to identifiable victims, then the possibility of harm to third persons becomes foreseeable, and the therapist has a duty to protect those third persons from the threatened harm. [Emphasis added.]
67 The reasons in Brady v. Hopper made it clear that the duty to warn should not be interpreted in such a wide and encompassing manner that therapists would become responsible for all their patients’ violent actions. Such a test would be unreasonable and upset the balance between public safety and the importance to society of cultivating confidential relationships. Moore J. wrote at p. 1339: “In my opinion, the ‘specific threats to specific victims’ rule states a workable, reasonable, and fair boundary upon the sphere of a therapist’s liability to third persons for the acts of their patients.” (Emphasis added.)
68 There is much to commend these well‑reasoned American decisions. Yet they lead me to believe that two observations should be made. First, it will not always be necessary to identify a specific individual as the victim. Rather it may be sufficient to engage the duty to warn if a class of victims, such as little girls under five living in a specific area, is clearly identified. Second, although Moore J. speaks of the patient “verbaliz[ing] his intentions”, I believe it is more appropriate to speak of a person making known his or her intentions. While speech is perhaps the most common means of making intentions known, it is certainly not the only manner of indicating a clear intention. It could be accomplished soundlessly yet with brutal clarity by thrusting a knife through a photograph of the intended victim.
(b) United Kingdom Decisions
69 The leading case in the United Kingdom on balancing the duty of confidentiality and the duty to disclose is W. v. Egdell, [1990] 1 All E.R. 835 (C.A.). Although the facts differ somewhat from this case, enough similarities exist to make the reasoning set out in the two concurring judgments helpful to the considerations that must be given to the case at bar. In that case W. pled guilty to manslaughter after committing a series of killings. As a result of a finding of diminished responsibility he was confined to a mental institution. Ten years later, he applied pursuant to the appropriate regulations for a conditional discharge, or a transfer to a regional secure unit. To this end, through his solicitors, W. consulted Dr. Egdell, a psychiatrist, who was to report on his mental state. His report did not support W.’s application for transfer. Rather he expressed grave concerns regarding W.’s lack of remorse and his continuing interest in homemade bombs and fireworks. As a result, W. withdrew his application.
70 Shortly thereafter, Dr. Egdell telephoned the tribunal that was to review W.’s application to ask whether it had received a copy of his report. He learned that it had not and that the application had been withdrawn. He telephoned W.’s solicitors for permission to forward his report to the assistant medical director of the hospital in which W. was incarcerated and was refused. Nonetheless, Dr. Egdell forwarded his report to the hospital, which then forwarded it to the Home Office. Both of these copies were sent without W.’s permission or knowledge.
71 By chance, several days later W.’s file was due for a three‑year review under the Mental Health Act. It was then that his solicitors learned that Dr. Egdell’s report had been forwarded to the hospital. W. began proceedings, seeking an injunction to prevent the mental health review tribunal from disclosing or considering Dr. Egdell’s report, for the delivery of all copies of the report to him, and for damages for breach of the duty of confidence.
72 In their concurring judgments, Sir Stephen Brown P. and Bingham L.J. affirmed the trial judge’s ruling dismissing W.’s suit. Bingham L.J. said at p. 848, “[T]he law treats such duties [of confidentiality] not as absolute but as liable to be overridden where there is held to be a stronger public interest in disclosure”. Both justices agreed with the trial judge that the threshold for disclosure was met. The harm that could result if W.’s mental illnesses were not adequately recognized and treated was serious, and the displacing of doctor‑patient confidentiality was justified in light of the existing circumstances. The fact that W. had already committed murder was obviously significant. Sir Stephen Brown P. wrote at p. 846:
The balance of public interest clearly lay in the restricted disclosure of vital information to the director of the hospital and to the Secretary of State who had the onerous duty of safeguarding public safety.
In this case the number and nature of the killings by W must inevitably give rise to the gravest concern for the safety of the public.
73 In the United Kingdom the duty on a doctor not to disclose is never absolute. Further, the duty to disclose must be evaluated in the context of the existing circumstances and the specific facts presented.
C. The Public Safety Exception and Solicitor‑Client Privilege
74 The foregoing review makes it clear that even the fundamentally important right to confidentiality is not absolute in doctor‑patient relationships, and it cannot be absolute in solicitor‑client relationships: Solosky, supra. When the interest in the protection of the innocent accused and the safety of members of the public is engaged, the privilege will have to be balanced against these other compelling public needs. In rare circumstances, these public interests may be so compelling that the privilege must be displaced. Yet the right to privacy in a solicitor‑client relationship is so fundamentally important that only a compelling public interest may justify setting aside solicitor‑client privilege.
75 Danger to public safety can, in appropriate circumstances, provide the requisite justification. It is significant that public safety exceptions to the solicitor‑client privilege are recognized by all professional legal bodies within Canada. See, for example, chapter 5, s. 12, of the British Columbia Professional Conduct Handbook:
Disclosure to prevent a crime
12. A lawyer may disclose information received as a result of a solicitor‑client relationship if the lawyer has reasonable grounds to believe that the disclosure is necessary to prevent a crime involving death or serious bodily harm to any person.
See as well the even broader Rule 4.11 of the Law Society of Upper Canada’s Professional Conduct Handbook.
76 Quite simply society recognizes that the safety of the public is of such importance that in appropriate circumstances it will warrant setting aside solicitor‑client privilege. What factors should be taken into consideration in determining whether that privilege should be displaced?
(1) Determining When Public Safety Outweighs Solicitor‑Client Privilege
77 There are three factors to be considered: First, is there a clear risk to an identifiable person or group of persons? Second, is there a risk of serious bodily harm or death? Third, is the danger imminent? Clearly if the risk is imminent, the danger is serious.
78 These factors will often overlap and vary in their importance and significance. The weight to be attached to each will vary with the circumstances presented by each case, but they all must be considered. As well, each factor is composed of various aspects, and, like the factors themselves, these aspects may overlap and the weight to be given to them will vary depending on the circumstances of each case. Yet as a general rule, if the privilege is to be set aside the court must find that there is an imminent risk of serious bodily harm or death to an identifiable person or group.
(a) Clarity
79 What should be considered in determining if there is a clear risk to an identifiable group or person? It will be appropriate and relevant to consider the answers a particular case may provide to the following questions: Is there evidence of long range planning? Has a method for effecting the specific attack been suggested? Is there a prior history of violence or threats of violence? Are the prior assaults or threats of violence similar to that which was planned? If there is a history of violence, has the violence increased in severity? Is the violence directed to an identifiable person or group of persons? This is not an all‑encompassing list. It is important to note, however, that as a general rule a group or person must be ascertainable. The requisite specificity of that identification will vary depending on the other factors discussed here.
80 The specific questions to be considered under this heading will vary with the particular circumstances of each case. Great significance might, in some situations, be given to the particularly clear identification of a particular individual or group of intended victims. Even if the group of intended victims is large considerable significance can be given to the threat if the identification of the group is clear and forceful. For example, a threat, put forward with chilling detail, to kill or seriously injure children five years of age and under would have to be given very careful consideration. In certain circumstances it might be that a threat of death directed toward single women living in apartment buildings could in combination with other factors be sufficient in the particular circumstances to justify setting aside the privilege. At the same time, a general threat of death or violence directed to everyone in a city or community, or anyone with whom the person may come into contact, may be too vague to warrant setting aside the privilege. However, if the threatened harm to the members of the public was particularly compelling, extremely serious and imminent, it might well be appropriate to lift the privilege. See in this regard Egdell, supra. All the surrounding circumstances will have to be taken into consideration in every case.
81 In sum, the threatened group may be large but if it is clearly identifiable then it is a factor ‑‑ indeed an essential factor ‑‑ that must be considered together with others in determining whether the solicitor‑client privilege should be set aside. A test that requires that the class of victim be ascertainable allows the trial judge sufficient flexibility to determine whether the public safety exception has been made out.
(b) Seriousness
82 The “seriousness” factor requires that the threat be such that the intended victim is in danger of being killed or of suffering serious bodily harm. Many persons involved in criminal justice proceedings will have committed prior crimes or may be planning to commit crimes in the future. The disclosure of planned future crimes without an element of violence would be an insufficient reason to set aside solicitor‑client privilege because of fears for public safety. For the public safety interest to be of sufficient importance to displace solicitor‑client privilege, the threat must be to occasion serious bodily harm or death.
83 It should be observed that serious psychological harm may constitute serious bodily harm, as this Court held in R. v. McCraw, [1991] 3 S.C.R. 72, at p. 81:
So long as the psychological harm substantially interferes with the health or well‑being of the complainant, it properly comes within the scope of the phrase “serious bodily harm”. There can be no doubt that psychological harm may often be more pervasive and permanent in its effect than any physical harm.
(c) Imminence
84 The risk of serious bodily harm or death must be imminent if solicitor‑client communications are to be disclosed. That is, the risk itself must be serious: a serious risk of serious bodily harm. The nature of the threat must be such that it creates a sense of urgency. This sense of urgency may be applicable to some time in the future. Depending on the seriousness and clarity of the threat, it will not always be necessary to impose a particular time limit on the risk. It is sufficient if there is a clear and imminent threat of serious bodily harm to an identifiable group, and if this threat is made in such a manner that a sense of urgency is created. A statement made in a fleeting fit of anger will usually be insufficient to disturb the solicitor‑client privilege. On the other hand, imminence as a factor may be satisfied if a person makes a clear threat to kill someone that he vows to carry out three years hence when he is released from prison. If that threat is made with such chilling intensity and graphic detail that a reasonable bystander would be convinced that the killing would be carried out the threat could be considered to be imminent. Imminence, like the other two criteria, must be defined in the context of each situation.
85 In summary, solicitor‑client privilege should only be set aside in situations where the facts raise real concerns that an identifiable individual or group is in imminent danger of death or serious bodily harm. The facts must be carefully considered to determine whether the three factors of seriousness, clarity, and imminence indicate that the privilege cannot be maintained. Different weights will be given to each factor in any particular case. If after considering all appropriate factors it is determined that the threat to public safety outweighs the need to preserve solicitor‑client privilege, then the privilege must be set aside. When it is, the disclosure should be limited so that it includes only the information necessary to protect public safety. See in this respect Descôteaux, supra, at p. 891.
(2) Extent of Disclosure
86 The disclosure of the privileged communication should generally be limited as much as possible. The judge setting aside the solicitor-client privilege should strive to strictly limit disclosure to those aspects of the report or document which indicate that there is an imminent risk of serious bodily harm or death to an identifiable person or group. In undertaking this task consideration should be given to those portions of the report which refer to the risk of serious harm to an identifiable group; that the risk is serious in that it involves a danger of death or serious bodily harm; and that the serious risk is imminent in the sense given to that word in para. 84 above. The requirement that the disclosure be limited must be emphasized. For example, if a report contained references to criminal behaviour that did not have an imminent risk of serious bodily harm but disclosed, for example, the commission of crimes of fraud, counterfeiting or the sale of stolen goods, those references would necessarily be deleted.
D. Application of the Public Safety Exception to Solicitor‑Client Privilege to the Case at Bar
(1) Clarity
87 Would a reasonable observer, given all the facts for which solicitor‑client privilege is sought, consider the potential danger posed by Mr. Jones to be clear, serious, and imminent? The answer must, I think, be in the affirmative. According to Dr. Smith’s affidavit, the plan described by Mr. Jones demonstrated a number of the factors that should be considered in determining the clarity of the potential danger. They are the clear identification of the victim group, the specificity of method, the evidence of planning, and the prior attempted or actual acts that mirror the potential act of threatened future harm.
88 It is apparent that Mr. Jones had planned in considerable detail attacks on prostitutes on Vancouver’s Downtown Eastside. He had gathered materials together that he planned to use to achieve his ultimate goal of forcing a prostitute to become his “sex slave” before killing her. He had arranged for vacation time from his job and had modified his basement apartment to ensure that no one else could enter. Mr. Jones had proceeded so far as to take rope and duct tape with him and had planned to shoot the intended victim in the face to obliterate her identity. Perhaps most important, he had called the initial assault to which he pled guilty a “trial run”. These factors should be considered together with Dr. Smith’s diagnosis of Mr. Jones, namely that he suffered a paraphiliac disorder with multiple paraphilias (in particular, sexual sadism), personality disorder with mixed features, and some antisocial features and drug abuse difficulty. The original planning and the prior attack on a prostitute emphasize the potential risk of serious bodily harm or death to prostitutes in the Downtown Eastside of Vancouver.
89 Although Mr. Jones attempted to explain his failure to seek treatment for fear of a longer sentence and the danger he would be exposed to in prison, this does not affect the gravity of the threatened attack on prostitutes. The combination of the factors referred to in the paragraph above meets the standard of clarity necessary to set aside solicitor‑client privilege. The potential victim or group of victims is identifiable. Mr. Jones had already acted once in committing the crime for which he is waiting to be sentenced. It is clear that he intended to act again. The risk of serious bodily harm or death was readily apparent and the group of victims was readily identifiable. The harm potentially caused was of the utmost gravity.
(2) Seriousness
90 The seriousness of the potential harm, a sexually sadistic murder, is clearly sufficient. The fact that Mr. Jones has after careful and detailed planning already committed an assault upon a prostitute supports the finding that the potential harm caused would be extremely serious.
(3) Imminence
91 The most difficult issue to resolve is whether the risk of serious bodily harm can be termed “imminent”. Mr. Jones was arrested on September 17, 1996, for the assault he had committed three days earlier. He consulted Dr. Smith on July 30, 1997. Dr. Smith contacted Mr. Jones’s counsel the following day to inform him that, in Dr. Smith’s opinion, Mr. Jones was a dangerous individual. About three months later, some 14 months after Mr. Jones’s arrest, Dr. Smith telephoned Mr. Jones’s counsel again and learned that his (Dr. Smith’s) concerns would not be addressed in the sentencing hearing. He then began these legal proceedings. Mr. Jones has been in custody since December 15, 1997, pursuant to the order of Henderson J. Mr. Jones was thus at liberty from September 14, 1996, to December 15, 1997, a period of almost 15 months. During that time he did not carry out his plan to attack and kill another prostitute. Moreover, Mr. Jones has not carried out a series of attacks over a period of time, which would lead to the conclusion that another attack was imminent. He has been charged and convicted of only one incident.
92 No evidence was adduced as to whether Dr. Smith considered that a future attack was imminent. It is noteworthy that, first, he waited over three months to contact Mr. Jones’s counsel. Second, there is no evidence that he believed it was probable Mr. Jones would commit a serious attack in the near future. Yet it must be remembered that Dr. Smith did take it upon himself to call Mr. Jones’s counsel regarding the sentencing hearing. Even more significantly, Dr. Smith undertook these proceedings so that his report and opinion might be considered in the sentencing of Mr. Jones.
93 There are two important factors that indicate that the threat of serious bodily harm was indeed imminent. First, Mr. Jones admitted that he had breached his bail conditions by continuing to visit the Downtown Eastside where he knew prostitutes could be found. Second, common sense would indicate that after Mr. Jones was arrested, and while he was awaiting sentence, he would have been acutely aware of the consequences of his actions. This is of particular significance in light of his fear of being attacked while he was in jail.
94 Let us assume that the evidence as to imminence of the danger may not be as clear as might be desired. Nonetheless, there is some evidence of imminence. Furthermore, the other factors pertaining to clarity, the identifiable group of victims, and the chilling evidence of careful planning, when taken together, indicate that the solicitor‑client privilege must be set aside for the protection of members of the public.
95 The judge of first instance very properly limited disclosure of Dr. Smith’s affidavit to those portions of it which indicated that there was an imminent risk of death or serious bodily harm to an identifiable group comprising prostitutes located in the Downtown Eastside of Vancouver. In light of these conclusions, the solicitor‑client privilege attaching to Dr. Smith’s report, to the extent provided by the order of Henderson J., must be set aside.
E. Appropriate Procedures to Adopt
96 Dr. Smith chose to bring a legal action for a declaration that he was entitled to disclose the information he had in his possession in the interests of public safety. However, this is not the only manner in which experts may proceed. Although it is true that this procedure may protect the expert from legal consequences, there may not always be time for such an action. In whatever action is taken by the expert, care should be exercised that only that information which is necessary to alleviate the threat to public safety is revealed.
97 It is not appropriate in these reasons to consider the precise steps an expert might take to prevent the harm to the public. It is sufficient to observe that it might be appropriate to notify the potential victim or the police or a Crown prosecutor, depending on the specific circumstances.
F. The Lifting of the Publication Ban
98 Henderson J. was concerned that, because of the nature of these proceedings, the protection offered by solicitor‑client privilege would be improperly and irretrievably lost by premature publication of the details of this case. As a result, he sealed the file. The British Columbia Court of Appeal continued the order for sealing the file. The same order was confirmed by this Court. As well, publication of the contents of the file was prohibited.
99 For this Court to seal a file was a highly unusual procedure. It was required because if solicitor‑client privilege did attach to Dr. Smith’s report it could never be made public. In other words the file could only be unsealed and the documents made public if it was determined that solicitor‑client privilege should not apply to the report because of the existence of the danger to the public.
100 In this Court the entire affidavit of Dr. Smith was read and considered. I agree with the deletions referred to in the order made by Henderson J. Those references are either not relevant to the issue of dangerousness or have such a minimal probative value that they should not form part of the consideration of danger to the public. Nor should they form part of the released record. It is true that the proceedings of this Court should be as open as possible. Yet the excised portions could never form part of the record. They would be inadmissible as evidence on the issue of danger to the public. The record will be unsealed and the affidavit of Dr. Smith as edited pursuant to the order of Henderson J. will be made public together with all the other material in the court’s file.
101 There may be situations where further consideration will have to be given to this issue. For example, where this Court takes into account more of the privileged document in determining the issue of dangerousness than did the courts below so that the entire document forms an integral part of the court’s decision, more of the privileged document may need to be released. That question cannot, however, be resolved in this case.
102 In the result the file will be unsealed and the ban on the publication of the contents of the file is removed, except for those parts of the affidavit of the doctor which do not fall within the public safety exception. Subject to this direction the order of the British Columbia Court of Appeal is affirmed.
103 I would add that a motion was brought that this appeal be heard in camera. This motion was denied at the outset of the hearing. Members of the press and public were present throughout but were, until now, subject to the ban on publication.
G. Costs
104 Dr. Smith seeks to recover his costs. He should not have them. This case raised the issue of when solicitor‑client privilege can be set aside. It has been found that, because of the danger posed by Mr. Jones to the public, solicitor‑client privilege, which Mr. Jones had every right to believe attached to Dr. Smith’s report, was set aside. This case arises in the context of criminal proceedings and the result may well affect the sentence imposed on Mr. Jones. It would be unfair and unjust in the circumstances to impose the burden of costs on Mr. Jones and I would not do so.
III. Disposition
105 The file will be unsealed and the ban on the publication of the contents of the file is removed, except for those parts of the affidavit of the doctor which do not fall within the public safety exception. Subject to this direction the order of the British Columbia Court of Appeal is affirmed and this appeal is dismissed without costs.
Appeal dismissed, Lamer C.J. and Major and Binnie JJ. dissenting.
Solicitors for the appellant: Mackoff & Stevens, Vancouver.
Solicitors for the respondent: Harper Grey Easton, Vancouver.
Solicitors for the intervener: Blake, Cassels & Graydon, Toronto.