Is there a work-life balance privilege?

In R v Dunnett, 2025 ONCA 392, Fairburn ACJO offers the latest reminder of how civility impacts not just the way we conduct cases, but the way they are decided.

This trial proceeded with a search warrant challenge. The night before the motion, the deputy Crown wrote defence counsel to advise that the assigned Crown had a “serious family crisis” and that the motion had to be adjourned. Defence counsel brought an 11(b) and put the assigned Crown to the proof of the alleged “crisis”. The Crown offered instead a hearsay affidavit from the deputy outlining the timeline on which he learned of the matter and what steps he took to alert the defence.

The trial judge accepted the hearsay affidavit, found that the adjourned search warrant challenge was an exceptional circumstance, and dismissed the 11(b) application. The defendant was convicted and appealed, alleging the trial judge erred in accepting hearsay on a material issue in dispute. Direct evidence—in this case, from the assigned Crown—was required.

Fairburn ACJO did not accept this argument. See paras 34-35:

It has been said that trials are not tea parties: Groia v. Law Society of Upper Canada, 2018 SCC 27, [2018] 1 S.C.R. 772, at para. 3. Although the stakes can be high, all counsel are expected to resolve matters in a peaceful and orderly fashion: Groia, at para. 2. Emotions can run high at trials, but through it all, professionalism and civility must be maintained both outside and inside of the courtroom. This includes being respectful of opposing counsel’s need to respond to a personal emergency and respectful of their privacy relating to personal matters.

The justice system could not function if lawyers refused to accept each other’s word without good reason or insisted on a “prove it” approach. Quite simply, there was no need for the assigned Crown to become a witness on this application. The evidence led by the Crown in this case was entirely sufficient. We have not, and hopefully will not, arrive at the point where lawyers facing personal crises must share their most intimate, personal details – along with those of their loved ones – to keep a prosecution on course.

The takeaway: unless there is good reason to think otherwise, counsel will be taken at their word when a personal matter out of court interferes with their work. The court will generally not pry into their privacy, even if that privacy is asserted over a material fact. You might call this “work-life balance privilege”.