Precedent - Lavallee Application

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Notice

Notice of Application

Application to Access Presumed Privilege Records

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 (Pursuant to Lavallee v Canada) TAKE NOTICE that an Application will be bought by the Crown for an Order granting the release of records seized from the Law Society of [province] at [time] a.m./p.m. on the [date] day of [month], [year], at [location] WHEREAS the [police force] are conducting an ongoing criminal investigation into the activities of [suspect] arising from allegations that they committed the offence(s) of [criminal offences]. AND WHEREAS in the course of the investigation investigators [seized/intend to seize] certain records from [location/organization] that may be or are otherwise presumed to be potentially solicitor-client privileged. Pursuant to Lavallee v Canada, 2002 SCC 61, [2002] 3 SCR 209, these records were sealed and delivered to the [prothonotary/clerk of the superior court]. AND WHEREAS the potential client(s) are entitled to notice of intrusion upon records that may be protected by solicitor. THE APPLICANT RELIES ON THE FOLLOWING GROUNDS 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. This presumption also attaches to records found in the client file held by counsel (Chatham-Kent (Municipality) (Re), 2014 CanLII 63626 (ON IPC)) and any lawyer bills or fees paid (Gault Estate v Gault Estate, 2016 ABCA 208). 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; It is the court’s responsibility——not any other 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. The process of executing a search set out while protecting privilege as set out by Lavallee requires a number of steps including: that "all documents in possession of a lawyer must be sealed before being examined or removed from the lawyer’s possession": Lavallee. 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. The 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: ... 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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Order

Order

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 (Pursuant to Lavallee) BEFORE THE HONOURABLE JUSTICE: WHEREAS on [date], a justice of the peace granted multiple judicial authorizations under [section] of the Criminal Code in relation to a criminal investigation for offence contrary to section(s) [list sections] of the Criminal Code. UPON THE APPLICATION by counsel for Her Majesty the Queen, [name of counsel], for ....; UPON READING the affidavit of [investigator affidavit] dated [date]; AND UPON BEING SATISFIED the appropriate persons have been duly notified of these proceedings; 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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