Editor’s Note: This post was written as a preview of an upcoming Supreme Court of Canada decision for the Fantasy Courts website and newsletter. Photo by Tasha Kostyuk on Unsplash
👮♀️ On Friday, Feb. 6, the Supreme Court of Canada will release its decision in R. v. Fox. At stake is the sanctity of solicitor-client privilege in the context of police listening to lawyer-client phone calls. The wrinkle is that the lawyer was calling her client to tell them about the police obtaining search warrants, which could impact them. The lawyer was charged with obstruction of justice but acquitted because she could not use the privileged recording to defend herself.
🎯 Last week, the SCC released Emond v. Trillium Mutual Insurance Co., 2026 SCC 3. The Court dismissed the appeal, with Justices Karakatsanis and Côté dissenting in part. The majority sided with the insurer and found that a “guaranteed rebuilding cost” endorsement didn’t actually guarantee the full cost to rebuild a home lost in a flood.
🤖 88% of players, as well as the SCCbot, correctly predicted the outcome.
🔮 Head over to Fantasy Courts to lock in your predictions for this week’s decision. Scroll down for details on this week’s case or a recap of last week’s judgment.
Case to Predict: When a Wiretap Captures a Lawyer’s Call
Crown as of right appeal from R v Fox, 2024 SKCA 26
What Happened?
A criminal defence lawyer (the Respondent) called her client during a police wiretap operation. The authorization did not permit live monitoring of calls with a lawyer, but such calls could be recorded with later access requiring a judge’s order. Despite this limit, a civilian monitor inadvertently listened to a few minutes of the call before disconnecting.
A judge later ruled the opening portion of the call was not privileged and released it to the Crown, while the remainder stayed privileged. Based on the released portion, the Respondent was charged with attempting to obstruct justice for alerting her client that police were about to execute search warrants. At trial, the judge excluded the recording on the basis of ss. 7 and 11(d) Charter breaches, and the Respondent was acquitted. The Court of Appeal upheld the acquittal, but found there was also a s. 8 Charter breach and would have excluded the evidence under s. 24(2) rather than s. 24(1). The dissent found no ss. 7 and 11(d) breaches, but agreed there was a s. 8 breach. However, he would not have excluded the evidence under s. 24(2) and ordered a new trial.
What Was Argued at the SCC?
Crown (Appellant): Even if there was a s. 8 breach, it was not serious enough to justify exclusion under s. 24(2). The Crown argues the Court of Appeal majority overstated what the evidence showed about the civilian monitor’s conduct and the resulting intrusion, and that the trial fairness concerns tied to the privileged remainder of the call did not require exclusion. Ethical/confidentiality rules do not automatically prevent a lawyer who is an accused from making the kind of application needed to test disclosure under the innocence-at-stake framework.
Fox (Respondent): This is fundamentally a solicitor-client privilege case. The Respondent argues the state’s interception/listening undermined privilege safeguards, and that relying on only the “non-privileged” slice while the rest remains inaccessible left her unable to make full answer and defence without compromising duties to her client. On that basis, exclusion (at least under s. 24(2), and possibly on fair trial grounds) was warranted.
What Else Should You Know Before Making a Prediction?
The mixed results in the courts below regarding Charter breaches highlight the many ways this appeal can go. I expect the SCC to be highly protective of solicitor-client privilege and skeptical of “it was inadvertent” explanations in a regime that knows lawyer calls will happen. That being said, I could see the Court also being critical of the lawyer’s conduct and reluctant to create what could be seen as an immunity for lawyers accused of crimes.
During the hearing, some justices acknowledged that R. v. McClure, 2001 SCC 14, which sets out the test for piercing the solicitor-client privilege, would need to be revisited in terms of how it applies to a lawyer as the accused. Based on questions, I think Justice Rowe (joined with Justices Côté and Moreau and Chief Justice Wagner) will want to allow the Crown appeal, while Justice Jamal (with Justices Karakatsanis, Martin, and Kasirer) will want to dismiss it. I’m not sure where that leaves Justice O’Bonsawin. I’m leaning towards appeal dismissed on the same basis as the Court of Appeal.
SCCbot
This season, we’re also asking the SCCbot, an AI tool that predicts Supreme Court of Canada decisions, what it thinks the Court will do. The SCCbot is currently 2 for 2. For this week, the SCCbot is saying appeal allowed, with a confidence of 70%. It reasons that the Court may prefer a McClure-style, judge-controlled review and limited disclosure framework over outright exclusion. A new trial would allow the trial judge to use other tools at their disposal.
Previous Case Recap: Emond v. Trillium Mutual
Emond v. Trillium Mutual Insurance Co., 2026 SCC 3
Held (7:2): Appeal dismissed, Karakatsanis and Côté JJ. dissenting in part. The insureds are not entitled to recover the increased compliance costs, other than $10,000 under the applicable exception.
Key points:
- The SCC used the case to clarify the interpretation of standard form insurance contracts, including how courts decide ambiguity under the Ledcor framework. Endorsements cannot be read in isolation.
- The majority held the policy language unambiguously excluded increased compliance costs (beyond the $10,000 exception), even with the Guaranteed Rebuilding Cost endorsement.
- The Court also clarified how the nullification of coverage doctrine fits alongside (and apart from) standard interpretation rules.
📊 Fantasy Courts results: 88% correct & SCCbot correct
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-Tom Slade