[Stuart O’Connell is a lawyer and head of O’Connell Law Group, a Toronto-based law firm which focuses on defence-side criminal and civil litigation, privacy law, and victim rights.  He also regularly works in association with Donich Law Professional Corporation]

Information improperly disclosed to the trier of fact in breach of solicitor-client privilege cannot be used by the trier of fact to support a conviction.

R. v. Olusoga, 2019 ONCA 565.

The proper functioning of the adversarial system depends on the assurance, given to every accused, that communications with their lawyer for the purpose of receiving legal advice are, subject to certain exceptions, privileged.

In Olusoga, defence counsel, in explaining to the trial judge why he had not put the appellant’s version of events to the complainant during her testimony (as was required by the rule in Browne v. Dunn), divulged that he expected that the appellant would testify to a different version of events.  This disclosure was in breach of solicitor-client privilege.

The trial judge’s use of that privileged information in his assessment of the appellant’s credibility occasioned a miscarriage of justice.