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Revision as of 07:28, 11 July 2021
- PRECEDENT TERMS OF USE
All forms, templates and precedents, including anything found on this page, can be used without the need for any attribution.
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Notice
- See also: Searches Intruding on Solicitor-Client Privilege and Law Office Searches
| Application to Determine Privilege
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C A N A D A File# ________________
PROVINCE OF [PROVINCE]
COUNTY OF [COUNTY]
IN THE [LEVEL OF COURT] OF [PROVINCE]
([name] Region)
BETWEEN:
HIS MAJESTY THE KING
– and –
[ACCUSED NAME]
NOTICE OF APPLICATION
(ex parte and in camera)
(Application for Declaration of Waiver of Solicitor-Client Privilege)
TAKE NOTICE that an in camera Application is being sought for an Order of Declaration affirming the waiver of any privilege associated with the ... .
WHEREAS ...
THE APPLICANT RELIES ON THE FOLLOWING GROUNDS
- Generally, 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.
IN SUPPORT OF THIS APPLICATION, THE APPLICANT RELIES ON THE FOLLOWING EVIDENCE:
- Affidavit of [officer]
- Accompanying Exhibits:
- waiver of [client name]
- ...
THE APPLICANT SEEKS THE FOLLOWING RELIEF:
- An Order...
DATED at ______________, in the Province of _______________, this _____ day of _____________, 20___.
_______________________________
[Counsel's name]
[Counsels title]
[Internal File Coding]
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<gdoc id="1btRgha93mpkv_Jiuk4sa7QxAIrhZuMsoFzrWVQSl6hU" width="750" height="1000" />
Affidavit
| AFFIDAVIT (GENERIC)
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C A N A D A File# ________________
PROVINCE OF [PROVINCE]
COUNTY OF [COUNTY]
IN THE [LEVEL OF COURT] OF [PROVINCE]
([name] Region)
BETWEEN:
HIS MAJESTY THE KING
– and –
[ACCUSED NAME]
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.
- ...
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SWORN/AFFIRMED TO at [city], in the region of
[region], Province of
[province], this [day]
day of [month], 20____, before me:
________________________________
Commissioner of Oaths/Barrister of
the [level] Court of [province]
|
)
)
)
)
)
) _____________________________
) [Affiant Name]
) [Affiant title]
)
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[Internal File Coding]
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EXHIBIT A
[DESCRIPTION]
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EXHIBIT B
[DESCRIPTION]
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<gdoc id="1wWDrKw1n7qVkhYG3Um8EoZ-aE34LANI9mL5ZLczBcAM" width="750" height="1000" />
Order
| Order
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C A N A D A File# ________________
PROVINCE OF [PROVINCE]
COUNTY OF [COUNTY]
IN THE [LEVEL OF COURT] OF [PROVINCE]
([name] Region)
BETWEEN:
HIS MAJESTY THE KING
– and –
[ACCUSED NAME]
ORDER
(...)
Before the Honourable Justice Presiding:
WHEREAS on [date], a .... .
AND WHEREAS the appropriate persons have been notified;
IT IS ORDERED that the ....
DATED at ______________, in the Province of _______________, this _____ day of _____________, 20___.
_________________________________________________
Justice of the [Level of Court] of [Province]
[Internal File Coding]
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<gdoc id="1xt0aAAP1eYMkZS92pXfhlLHoZsQkSk9ZHIzao5RDMzY" width="750" height="1000" />
