Dec 1, 2014

Case Summary - Smith v Jones

Smith v. Jones, [1999] 1 SCR 455

    ·(gist: an action commenced by a psychiatrist who wished to break the rule of solicitor-client confidentiality based on a concern for public safety...)

    othis case refers to the the psychiatrist’s relationship with the accused as solicitor-client confidentiality, as opposed to doctor-patient confidentiality, because the psychiatrist in this case was acting as an expert for a lawyer)

    oin 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.


    oAn accused was charged with aggravated sexual assault on a prostitute

    othe accused’s lawyer had the accused evaluated by an expert- a psychiatrist- for the purpose of building a defense

    othe accused confessed to psychiatrist (in confidence) that he had in fact committed the aggravated sexual assault with which he was charged; He also revealed to psychiatrist that he planned to kidnap, rape, and murder more prostitutes in the near future!

    othe accused’s lawyer did not use this information in the accused’s defense (for obvious reasons)

    othe psychiatrist objected to the lawyer’s omission of the accused’s confessions- psychiatrist argued that public safety was at risk if the lawyer did not reveal the accused’s confessions to the court

    opsychiatrist filed an affidavit describing the accused’s confession

    o(affidavit= a written statement for use as evidence in court)

    opsychiatrist brings this action to be able to disclose his affidavit concerning the accused’s confession to him.

    ·Issue: is the psychiatrist released from his duty of solicitor-client confidentiality on account of the public safety exception?

    o(note: this case is not just about the right of the psychiatrist to notify the authorities of the accused’s confession; rather, it is more specifically about the psychiatrist’s right to notify the police and the crown in the context of his solicitor-client duty- remember, the psychiatrist was acting as an expert for the accused’s lawyer, so the solicitor-client privilege was extended to him as well!

    othe psychiatrist’s duty in this case was not merely one of doctor-patient confidentiality. Because he was working as an expert for a lawyer, the psychiatrist was endowed with what’s called an “extension of solicitor-client Privilege to Experts”

    oIn Canada, client communications with defense experts used by lawyers for the purpose of preparing their defense are protected by solicitor-client privilege

    oso it’s that specific extension of solicitor-client privilege that’s at issue in this case.)

    ·Held: yes, the psychiatrist is released from his duty of confidentiality on account of the public safety exception; ie, the solicitor‑client privilege attaching to the psychiatrist’s affidavit must be set aside.

    oThe psychiatrist’s affidavit will be unsealed and the ban on its publication removed, (except for those parts of the psychiatrist’s affidavit which do not fall within the public safety exception).

Reasoning: Cory J

    ·Analysis of solicitor-client privilege:

    ·The solicitor‑client privilege is a principle of fundamental importance to the administration of justice.

    ·However, it is subject to some exceptions:

    o1. Innocence of the accused

    §ie, when exercising solicitor-client privilege could actually be more detrimental to the accused than to reveal whatever has been kept confidential

    o2. Criminal Communications

    §communications that are criminal in themselves, or are intended to obtain legal advice to facilitate criminal activities are not protected by solicitor-client privilege

    o3. The Public Safety Exception (what this case is about)

    §Three factors should be taken into consideration in determining whether public safety outweighs solicitor‑client privilege:

    ·Is there a clear risk to an identifiable person or group of persons?

    oa group or person must always be ascertainable

    oa 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.

    oIn 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.

    ·(2) Is there a risk of serious bodily harm or death?

    ·(3) Is the danger imminent?

    ·the consideration of these factors will vary according to the context

    ·When the solicitor-client privilege is put aside, the disclosure should be limited so that it includes only the information necessary to protect public safety.

    oie, disclosure must remain as limited 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 this case, the disclosure of the psychiatrist's affidavit satisfies this criterion of limited disclosure (this is where the dissent disagrees)

    ·the disclosure of the accused’s confession to the original crime is necessary because it illustrates the imminence of the danger he poses.

Dissent: Lamer, Major and Binnie

    ·the dissent disagrees with the majority as to the extent of disclosure... ie, as to how much info it was necessary to disclose to protect the public in this case.

    ·they argue that a limited exception to the solicitor-client privilege which does not include constrictive evidence against the accused would address the immediate concern for public safety

    ·two principles should guide the analysis of the scope of the disclosure:

    o(1) the breach of privilege must be as narrow as possible; and

    o(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.

    ·the psychiatrist should only disclose his opinion of the accused (that the accused is dangerous) 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 offense (of assaulting a prostitute)-

    ·the danger posed by the accused can be adequately addressed by the psychiatrist’s opinion without him revealing the actual confession of him assaulting the initial prostitute.

    ·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.

    ·but he should not be allowed to disclose any confession from the accused relating to the circumstances of the offense

Note: the actual admissibility of the psychiatrist’s affidavit as evidence is a whole other issue- the admissibility of the affidavit is not to be decided in this case. The only issue is whether the affidavit will be disclosed and the solicitor-client privilege be set aside in this case.