Searches Intruding on Solicitor-Client Privilege
|This page was last substantively updated or reviewed January 2020. (Rev. # 80835)|
The Court has an ongoing duty to protect privilege and cannot delegate that responsibility to counsel of any form.
It is the character of the communication that triggers the need to protect the content for a possible claim of privilege, not simply relationship to a physical location of a lawyer's office.
- Law Society Role
It is generally recommended that the law society representative exercise oversight to the execution of a warrant seizing potentially privileged materials by attending personally to the police seizure.
Law Office Searches
- No search warrant can be issued with regards to documents that are known to be protected by solicitor-client privilege.
- Before searching a law office, the investigative authorities must satisfy the issuing justice that there exists no other reasonable alternative to the search.
- When allowing a law office to be searched, the issuing justice must be rigorously demanding so to afford maximum protection of solicitor-client confidentiality.
- Except when the warrant specifically authorizes the immediate examination, copying and seizure of an identified document, all documents in possession of a lawyer must be sealed before being examined or removed from the lawyer’s possession.
- Every effort must be made to contact the lawyer and the client at the time of the execution of the search warrant. Where the lawyer or the client cannot be contacted, a representative of the Bar should be allowed to oversee the sealing and seizure of documents.
- The investigative officer executing the warrant should report to the justice of the peace the efforts made to contact all potential privilege holders, who should then be given a reasonable opportunity to assert a claim of privilege and, if that claim is contested, to have the issue judicially decided.
- If notification of potential privilege holders is not possible, the lawyer who had custody of the documents seized, or another lawyer appointed either by the Law Society or by the court, should examine the documents to determine whether a claim of privilege should be asserted, and should be given a reasonable opportunity to do so.
- The Attorney General may make submissions on the issue of privilege, but should not be permitted to inspect the documents beforehand. The prosecuting authority can only inspect the documents if and when it is determined by a judge that the documents are not privileged.
- Where sealed documents are found not to be privileged, they may be used in the normal course of the investigation.
- Where documents are found to be privileged, they are to be returned immediately to the holder of the privilege, or to a person designated by the court.
- Law Office Rules Expanded
The Lavallee rules regarding the search of law offices will include all places "where privileged documents might reasonably be expected to be located".
- Notice to Law Society and Privilege Holder
Where potentially privileged records are being transferred from a third party to the police, notice should be given to the bar society and the client.
- Timing of Notice
The timing of the necessary notice to relevant parties such as the law society or to counsel should occur at the time that the records are to be transferred to police.
- State's Duty to Protect Privilege
The state has a general duty to ensure that there are sufficient protections to a person's privilege.
- Procedures that Minimally Impair
Those conducting the search of a law office have a duty to minimize the impairment of solicitor-client privilege. It is not however appropriate to "involve a balancing of interests on a case-by-case basis".
A search warrant of law office must impose conditions to protect potential privilege "as much as possible". Without proper protections the warrant is invalid.
- Appellate Review
There is no right of appeal of an order to produce law office documents under the Lavallee process. The only appeal lies in an appeal from verdict.
- Review of Documents
Festing v Canada (Attorney General), 2003 BCCA 112 (CanLII), 172 CCC (3d) 321, per curiam, at para 24 ("In the result, we agree with counsel that the Lavallee guidelines should apply to searches of places which may not fall within the traditional concept of a law office. ..., we conclude that the words "law office" should be interpreted for the purpose of applying the Lavallee guidelines as including: "any place where privileged documents may reasonably be expected to be located". This definition would include, for example, a lawyer's home, a lawyer's office in multi-disciplinary business premises; the office of in-house counsel for a business, and storage facilities where lawyers store their files. ...")
R v AB, 2014 NLCA 8 (CanLII), 346 Nfld & PEIR 218, per Harrington JA, at para 31
see also R. v. Qoneshi, 2006 ABQB 14, 54 Alta. L.R. (4th) 357(complete citation pending)
R. v. Murtha, 2009 NSSC 342, 286 N.S.R. (2d) 122, at para. 16
- AB, supra, at para 48
- AB, ibid., at para 48
- Lavallee, Rackel & Heintz v Canada (Attorney General); White, Ottenheimer & Baker v Canada (Attorney General); R v Fink, 2002 SCC 61 (CanLII),  3 SCR 209, per Arbour J, at para 39 ("The fact that competent counsel will attempt to ascertain the whereabouts of their clients and will likely assert blanket privilege at the outset does not obviate the state’s duty to ensure sufficient protection of the rights of the privilege holder")
Maranda v Richer, 2003 SCC 67 (CanLII),  3 SCR 193, per LeBel J, at paras 14 to 20
Lavallee, supra, at paras 36 to 37 e.g. ("Minimal impairment has long been the standard by which this Court has measured the reasonableness of state encroachments on solicitor-client privilege.") and ("Anytime such a fundamental right is eroded the principle of minimal impairment must be observed")
Canada (Attorney General) v Chambre des notaires du Québec, 2016 SCC 20(complete citation pending) at para 28 ("Because of its importance, the Court has often stated that professional secrecy should not be interfered with unless absolutely necessary given that it must remain as close to absolute as possible")
Canada v Blood Tribe Department of Health, 2008 SCC 44 (CanLII),  2 SCR 574, per Binnie J, at para 17
- R v Piersanti & Company, 2000 CanLII 17032 (ON CA), per curiam
- Dee v Her Majesty the Queen in Right of Canada, 2008 NBCA 10 (CanLII), 232 CCC (3d) 269, per curiam
Blood Tribe Department of Health, supra, at paras 17 and 30
Blood Tribe, ibid., at para 30
Descôteaux, supra, at p. 875
Searching Electronic Devices
Where the examiners become aware of presumptive privilege communication on an electronic device the police should not be permitted to examine the contents.
- Independent Examiner
There is suggestions that "operationally-independent forensics department with technical expertise" may be permitted to isolate solicitor-client privilege materials.
The examiner should be able take an oath of confidentiality.
- Minimal Impairment
The process of "identifying, isolating and storing data that may be subject to a SCP claim the must be reasonable, which requires that it comply with a standard of "minimal impairment".
- Storage of Identified Privileged Materials
Where potentially privileged records have been isolated it has been suggested that the "master copy" of the electronic documents should be sealed.
Where the search is of a law office that may implicate the privilege of multiple clients, the heightened risk suggests that a referee may be the most appropriate option. However, where the privilege concern relates only to one client, the need for a referee is diminished.
- R v Herritt, 2019 NSCA 92 (CanLII), 384 CCC (3d) 25, per Beveridge JA, at para 127
- Solicitor-Client Privilege of Things Seized (Re), 2019 BCSC 91 (CanLII), per BJ Brown J, at para 66 ("Past cases suggest that an operationally-independent forensics department with technical expertise may be appropriate to isolate solicitor-client privileged material. However, the tools used in the isolation process must allow the forensics team to do their work without reading the content of the privileged material. Forensics departments may use keywords searches to isolate solicitor-client privileged materials. Keywords that disclose privileged information are not acceptable")
Things Seized, ibid. at para 49
- Things Seized, ibid. at para 43 to 44 ("Courts employ the standard of “minimal impairment” when determining the “reasonableness of state encroachments on solicitor-client privilege” ... courts consider the persons and processes appropriate for identifying and isolating the privileged material, and where and how the privileged material should be stored.")
- Things Seized, ibid., at paras 55 to 56
- Things Seized, supra, at para 48
Seizing and Vetting Privileged Documents
It is the "court's responsibility to ensure that any privilege claim is properly reviewed and evaluated". For that reason a referee/trustee should not be the one who makes the decision on whether a document is privileged.
There are no "particularly procedural methods" required to protect solicitor-client privilege. They are designed on a case-by-case basis.
There is support for the option of the police or Crown giving the record to the client for vetting/removal of privilege materials.
- Clean Team Review
The use of an adversarial investigative unit as "clean team" to review records for privilege, may offend the "appearance of fairness and impartiality". The starting point should be to consider retaining someone who is "independent of the interested parties". Exception could be made to avail of a "particular and unique expertise that would be valuable in examining the seized material". However, "appropriate safeguards" should be considered.
R v Law Office of Simon Rosenfeld, 2003 CanLII 13453 (ONSC), 58 WCB (2d) 67, per Nordheimer J
R v Hanington, 2006 ABQB 378 (CanLII), 402 AR 358, per Veit J, at para 16
- Re Unnamed person, 2020 FC 1190 (CanLII) per Brown J , at para 52
- R v Herritt, 2019 NSCA 92 (CanLII), 384 CCC (3d) 25, per Beveridge JA
United States v Equinix Inc, 2017 ONCA 260 (CanLII), per Doherty JA, at para 30
Equinix, ibid., at para 31
Equinix, ibid., at para 32
Constitutionality of Code Provisions
Section 488.1 concerning search of law offices was found to be unconstitutional.
- Lavallee, Rackel & Heintz, supra