Searches Intruding on Solicitor-Client Privilege

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2021. (Rev. # 95556)

General Principles

See also: Special Search Issues and Solicitor-Client Privilege

The Court has an ongoing duty to protect privilege and cannot delegate that responsibility to counsel of any form.[1]

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.[2]

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.[3]

  1. ↑ Re Unnamed person, 2020 FC 1190 (CanLII) per Brown J, at para 60
  2. ↑ R v AB, 2014 NLCA 8 (CanLII), 346 Nfld & PEIR 218, per Harrington JA, at para 34
  3. ↑ AB, supra

Law Office Searches

A justice of the peace should follow the following principles when considering a search of a law office so that solicitor-client privilege is protected:[1]

  1. No search warrant can be issued with regards to documents that are known to be protected by solicitor-client privilege.
  2. Before searching a law office, the investigative authorities must satisfy the issuing justice that there exists no other reasonable alternative to the search.
  3. When allowing a law office to be searched, the issuing justice must be rigorously demanding so to afford maximum protection of solicitor-client confidentiality.
  4. 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.
  5. 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.
  6. 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.
  7. 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.
  8. 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.
  9. Where sealed documents are found not to be privileged, they may be used in the normal course of the investigation.
  10. 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.
  1. ↑ Lavallee, Rackel & Heintz v Canada (Attorney General); White, Ottenheimer & Baker v Canada (Attorney General); R v Fink, 2002 SCC 61 (CanLII), [2002] 3 SCR 209, per Arbour J, at para 49

Lawyer Communications

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".[1]

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.[2]

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.[3]

State's Duty to Protect Privilege

The state has a general duty to ensure that there are sufficient protections to a person's privilege.[4]

Procedures that Minimally Impair

Those conducting the search of a law office have a duty to minimize the impairment of solicitor-client privilege.[5] It is not however appropriate to "involve a balancing of interests on a case-by-case basis."[6]

Restrictions

A search warrant of law office must impose conditions to protect potential privilege "as much as possible". Without proper protections the warrant is invalid.[7]

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.[8]

Review of Documents

There is no requirement that a court review all lawyer documents to determine if they contain privilege.[9] Courts should only review "to the extent absolutely necessary."[10]

  1. ↑ 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 (CanLII), 204 CCC (3d) 211, 54 Alta. L.R. (4th) 357, per Sanderman J
    R v Murtha, 2009 NSSC 342 (CanLII), 286 NSR (2d) 122, per Farrar J, at para 16
  2. ↑ AB, supra, at para 48
  3. ↑ AB, ibid., at para 48
  4. ↑ Lavallee, Rackel & Heintz v Canada (Attorney General); White, Ottenheimer & Baker v Canada (Attorney General); R v Fink, 2002 SCC 61 (CanLII), [2002] 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")
  5. ↑ Maranda v Richer, 2003 SCC 67 (CanLII), [2003] 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 (CanLII), {{{4}}}, per Wagner and Gascon JJ, 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")
  6. ↑ Canada v Blood Tribe Department of Health, 2008 SCC 44 (CanLII), [2008] 2 SCR 574, per Binnie J, at para 17
  7. ↑ R v Piersanti & Company, 2000 CanLII 17032 (ON CA), per curiam
  8. ↑ Dee v Her Majesty the Queen in Right of Canada, 2008 NBCA 10 (CanLII), 232 CCC (3d) 269, per curiam
  9. ↑ Blood Tribe Department of Health, supra, at paras 17 and 30
  10. ↑ 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.[1]

Possible Approach

Where the presumptive privilege exists, one option is to provide a copy of the contents of the device can be provided to the client or their counsel for them to determine whether to assert privilege.[2]

Independent Examiner

There is suggestion that "operationally-independent forensics department with technical expertise" may be permitted to isolate solicitor-client privilege materials.[3] Such an expert would "allow for a secure, efficient, and reliable separation of solicitor-client privileged materials."[4]

The examiner should be able take an oath of confidentiality.[5]

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".[6]

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.[7]

Referee

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.[8]

  1. ↑ R v Herritt, 2019 NSCA 92 (CanLII), 384 CCC (3d) 25, per Beveridge JA, at para 127
  2. ↑ Herritt, ibid., at paras 126to 127
  3. ↑ 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.")
  4. ↑ Things, ibid., at para 67
  5. ↑ Things Seized, ibid. at para 49
  6. ↑ 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.")
  7. ↑ Things Seized, ibid., at paras 55 to 56
  8. ↑ 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.[1]

There are no "particularly procedural methods" required to protect solicitor-client privilege. They are designed on a case-by-case basis.[2]

Typically, the potentially privileged materials should be identified and isolated from other seized materials.[3] This will often involve making of copies of the original source. One recommendation is for the "original" copy to be placed under seal and stored with the court.[4] Another option is for the original device to be stored in an independent secure site accessible only by the examiner.[5]

There is support for the option of the police or Crown giving the record to the client for vetting/removal of privileged materials.[6]

The operationally-independent examiners should use tools to isolate records without needing to read the contents of potentially privileged materials.[7] Typically keywords can be used to isolte records. However, keywords that would tend to reveal the subject matter of the advice sought should not be used (e.g. specialized law firm names).[8]

No 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."[9] The starting point should be to consider retaining someone who is "independent of the interested parties."[10] 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.[11]

  1. ↑ 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
  2. ↑ Re Unnamed person, 2020 FC 1190 (CanLII) per Brown J , at para 52
  3. ↑ Solicitor-Client Privilege of Things Seized (Re), 2019 BCSC 91 (CanLII), per Brown J, at para 55
  4. ↑ Things, ibid., at para 56
  5. ↑ Things, ibid., at para 59
  6. ↑ R v Herritt, 2019 NSCA 92 (CanLII), 384 CCC (3d) 25, per Beveridge JA
  7. ↑ Things, supra, at para 66
  8. ↑ Things, supra, at para 66
  9. ↑ United States v Equinix Inc, 2017 ONCA 260 (CanLII), per Doherty JA, at para 30
  10. ↑ Equinix, ibid., at para 31
  11. ↑ Equinix, ibid., at para 32

Constitutionality of Code Provisions

Section 488.1 concerning search of law offices was found to be unconstitutional.[1]

Definitions

488.1 (1) In this section,

"custodian" means a person in whose custody a package is placed pursuant to subsection (2) [examination or seizure of certain documents where privilege claimed];

"document", for the purposes of this section, has the same meaning as in section 321 [offences against rights of property – definitions];

"judge" means a judge of a superior court of criminal jurisdiction of the province where the seizure was made;

"lawyer" means, in the Province of Quebec, an advocate, lawyer or notary and, in any other province, a barrister or solicitor;

"officer" means a peace officer or public officer.

Examination or seizure of certain documents where privilege claimed

(2) Where an officer acting under the authority of this or any other Act of Parliament is about to examine, copy or seize a document in the possession of a lawyer who claims that a named client of his has a solicitor-client privilege in respect of that document, the officer shall, without examining or making copies of the document,

(a) seize the document and place it in a package and suitably seal and identify the package; and
(b) place the package in the custody of the sheriff of the district or county in which the seizure was made or, if there is agreement in writing that a specified person act as custodian, in the custody of that person.
Application to judge

(3) Where a document has been seized and placed in custody under subsection (2) [examination or seizure of certain documents where privilege claimed], the Attorney General or the client or the lawyer on behalf of the client, may

(a) within fourteen days from the day the document was so placed in custody, apply, on two days notice of motion to all other persons entitled to make application, to a judge for an order
(i) appointing a place and a day, not later than twenty-one days after the date of the order, for the determination of the question whether the document should be disclosed, and
(ii) requiring the custodian to produce the document to the judge at that time and place;
(b) serve a copy of the order on all other persons entitled to make application and on the custodian within six days of the date on which it was made; and
(c) if he has proceeded as authorized by paragraph (b), apply, at the appointed time and place, for an order determining the question.
Disposition of application

(4) On an application under paragraph (3)(c) [application to judge accessing records – determining disclosure], the judge

(a) may, if the judge considers it necessary to determine the question whether the document should be disclosed, inspect the document;
(b) where the judge is of the opinion that it would materially assist him in deciding whether or not the document is privileged, may allow the Attorney General to inspect the document;
(c) shall allow the Attorney General and the person who objects to the disclosure of the document to make representations; and
(d) shall determine the question summarily and,
(i) if the judge is of the opinion that the document should not be disclosed, ensure that it is repackaged and resealed and order the custodian to deliver the document to the lawyer who claimed the solicitor-client privilege or to the client, or
(ii) if the judge is of the opinion that the document should be disclosed, order the custodian to deliver the document to the officer who seized the document or some other person designated by the Attorney General, subject to such restrictions or conditions as the judge deems appropriate,

and shall, at the same time, deliver concise reasons for the determination in which the nature of the document is described without divulging the details thereof.

Privilege continues

(5) Where the judge determines pursuant to paragraph (4)(d) [application to judge accessing records – types of disposition] that a solicitor-client privilege exists in respect of a document, whether or not the judge has, pursuant to paragraph (4)(b), allowed the Attorney General to inspect the document, the document remains privileged and inadmissible as evidence unless the client consents to its admission in evidence or the privilege is otherwise lost.

Order to custodian to deliver

(6) Where a document has been seized and placed in custody under subsection (2) [examination or seizure of certain documents where privilege claimed] and a judge, on the application of the Attorney General, is satisfied that no application has been made under paragraph (3)(a) [application to judge accessing records – setting hearing] or that following such an application no further application has been made under paragraph (3)(c) [application to judge accessing records – determining disclosure], the judge shall order the custodian to deliver the document to the officer who seized the document or to some other person designated by the Attorney General.

Application to another judge

(7) Where the judge to whom an application has been made under paragraph (3)(c) [application to judge accessing records – determining disclosure] cannot act or continue to act under this section for any reason, subsequent applications under that paragraph may be made to another judge.

Prohibition

(8) No officer shall examine, make copies of or seize any document without affording a reasonable opportunity for a claim of solicitor-client privilege to be made under subsection (2) [examination or seizure of certain documents where privilege claimed].

Authority to make copies

(9) At any time while a document is in the custody of a custodian under this section, a judge may, on an ex parte application of a person claiming a solicitor-client privilege under this section, authorize that person to examine the document or make a copy of it in the presence of the custodian or the judge, but any such authorization shall contain provisions to ensure that the document is repackaged and that the package is resealed without alteration or damage.

Hearing in private

(10) An application under paragraph (3)(c) [application to judge accessing records – determining disclosure] shall be heard in private.

Exception

(11) This section does not apply in circumstances where a claim of solicitor-client privilege may be made under the Income Tax Act or under the Proceeds of Crime (Money Laundering) and Terrorist Financing Act.
R.S., 1985, c. 27 (1st Supp.), s. 71; 2000, c. 17, s. 89; 2001, c. 41, s. 80.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 488.1(1), (2), (3), (4), (5), (6), (7), (8), (9), (10), and (11)

  1. ↑ Lavallee, Rackel & Heintz, supra
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