View source for Application for Declaration of Waiver of Privilege (Precedent)

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==Notice==
{{seealso|Searches Intruding on Solicitor-Client Privilege|Law Office Searches}}
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! Application to Determine Privilege
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{{Style of Cause}}

{{TITLE|NOTICE OF APPLICATION|(''ex parte'' and ''in camera'')<Br>(''Application for Declaration of Waiver of Solicitor-Client Privilege'')}}

{{I-Start}}'''TAKE NOTICE''' that an ''in camera'' Application is being made for an Order of Declaration affirming the waiver of any privilege associated with the ... .{{I-End}}

{{I-Start}}'''WHEREAS''' ...{{I-End}}

{{I-Start}}'''THE APPLICANT RELIES ON THE FOLLOWING GROUNDS'''{{I-End}}
# Courts have a duty to not permit intrusion upon privilege where it might be present: see R v AB, 2014 NLCA 8 (CanLII), 346 Nfld & PEIR 218, per Harrington JA at paras 21 to 23 
# All counsel have a common law duty of loyalty to their clients, which includes a duty of confidentiality: Solosky v. The Queen, 1979 CanLII 9 (SCC), [1980] 1 SCR 821. Likewise, members of the [law society] are bound by [rule re confidentiality] requiring that they hold in confidence all information concerning the business and affairs of a client.
# Investigators are not permitted to interview lawyers or former lawyers where there is a reasonable possibility that the interview may intrude on solicitor-client privilege: e.g. R v Rudolph, 2017 NSSC 333 (CanLII)
# It is the court’s responsibility—not any of the parties—to determine whether privilege exists once a claim of privilege has been made or where there is a legal presumption that privilege exists: see R v Herritt, 2019 NSCA 92 (CanLII), 384 CCC (3d) 25, per Beveridge JA, at para 122.
# Any information received by a lawyer in his professional capacity is usually presumed confidential: ''Ott v Fleishman'', 1983 CanLII 489 (BC SC), 5 WWR 721, 46 BCLR 321 There is a presumption of confidentiality and privilege protecting all communications and information shared between the lawyer and client: ''Foster Wheeler v Societe intermunicipale de gestion et d'elmination des dechets'', 2004 SCC 18 (CanLII), [2004] 1 SCR 456.
# The police obtained written or oral waivers from a total of 81 clients of the firm. An additional seven (7) clients were asked but declined to waive privilege.
# Superior courts have jurisdiction arising from their obligation to protect privilege and their inherent jurisdiction to grant orders concerning the interview of lawyers pursuant to criminal investigations: ''R v AM'', 2021 ONSC 2725.
# Any additional grounds as counsel may advise and this Honourable Court may permit.

{{I-Start}}'''IN SUPPORT OF THIS APPLICATION, THE APPLICANT RELIES ON THE FOLLOWING EVIDENCE:'''{{I-End}}
# Affidavit of [officer]
# Accompanying Exhibits:
## waiver of [client name] 
# ...

{{I-Start}}'''THE APPLICANT SEEKS THE FOLLOWING RELIEF:'''{{I-End}}
# An Order...

{{I-Start}}'''FOR THE PURPOSE OF THIS APPLICATION, THE APPLICANT MAY BE SERVED AT:'''{{I-End}}

In accordance with the appropriate Rules of Court, 
{{CounselAddress}} 


{{DATED}}

<span style="display:inline-block; width: 300px;"></span>_______________________________
<span style="display:inline-block; width: 300px;"></span>[Counsel's name]
<span style="display:inline-block; width: 300px;"></span>[Counsels title]

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==Affidavit==

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! AFFIDAVIT (GENERIC)
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{{Style of Cause}}

{{TITLE|AFFIDAVIT OF [AFFIANT NAME]| }}

I, [Affiant name], of [City], in the [Community] and Province of [Province], make oath and say as follows that:

# I am the [relationship to case] herein and have personal knowledge of the matters and facts herein deposed to, except where stated to be based on information and belief, in which case I do verily believe the same to be true.
# ...
{{SwornSignature}}

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<center><b> EXHIBIT A<br>
[DESCRIPTION]<b></center>
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<center><b> EXHIBIT B<br>
[DESCRIPTION]<b></center>
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==Order==

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! Order
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{{Style of Cause}}

{{TITLE|ORDER|(''Re Waiver of Solicitor-Client Privilege'')}}

'''BEFORE THE HONOURABLE JUSTICE:'''

{{I-Start}}'''BEFORE THE HONOURABLE JUSTICE''' [name]{{I-End}}

{{I-Start}}'''WHEREAS''' on [date], the Crown made Application to determine whether any potential solicitor-client privilege has been extinguished by way of waiver from potential clients of the firm [name] (the "firm").{{I-End}}

{{I-Start}}'''AND WHEREAS''' investigators with the RCMP commercial crime section seek to interview persons previously employed by or a member of the firm, including former and current members of the provincial bar, concerning their dealings with certain complainant clients of the firm;{{I-End}}

{{I-Start}}'''AND WHEREAS''' any persons previously employed by or a member of the firm have no obligation to speak to members of the RCMP notwithstanding any other part of this Order;{{I-End}}

{{I-Start}}'''AND UPON READING''' the materials filed by the Applicant Crown Counsel consisting of:{{I-End}}
* an affidavit of Cst. [name] summarizing relevant investigative steps taken by members of the RCMP;
* written solicitor-client privilege waivers of certain complainant clients of the firm;
* a list of potential clients who declined to agree to any waiver of potential privilege;

{{I-Start}}'''AND UPON HEARING''' the submissions of [name], the Applicant Crown Counsel;{{I-End}}

{{I-Start}}'''AND ON BEING SATISFIED''' that the client waivers are in order;{{I-End}}

{{I-Start}}'''IT IS ORDERED''' that any solicitor-client privilege connected with the following potential clients have been duly waived for the following persons:{{I-End}}

{{I-Start}}'''IT IS FURTHER ORDERED''' that any solicitor-client privilege held by clients other than those listed herein remain unaffected.{{I-End}}

{{DATED}}

<span style="display:inline-block; width: 300px;"></span>_________________________________________________
<span style="display:inline-block; width: 300px;"></span>Justice of the [Level of Court] of [Province]

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