Fink, R. v. (2000), 51 O.R. (3d) 589 (C.A.)

  • Document:
  • Date: 2018

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Her Majesty the Queen v. Fink* **

[Indexed as: R. v. Fink]

51 O.R. (3d) 577

[2000] O.J. No. 4549

Docket No. C33537

Court of Appeal for Ontario

Morden, Austin and Goudge JJ.A.

December 4, 2000

 

*Note:          An appeal from the following judgment to the Supreme Court of Canada (McLachlin C.J., Iacobucci, Major, Bastarache, Binnie, Arbour, L’Heureux-Dub‚, Gonthier and LeBel JJ.) was dismissed on September 12, 2002.  The full text of the appeal is available at [2002] S.C.J. No. 61 (2002 SCC 61) in the S.C.J. database.)

 

**Vous trouverez traduction fran‡aise de la d‚cision ci-dessus … 51 O.R. (3d) 589.

 

Charter of Rights and Freedoms–Search and seizure–Law office search–Provisions of s. 488.1 of Criminal Code setting out procedure to be followed in seizing documents in possession of lawyer impairing solicitor-client privilege to more than minimal extent–Provisions violating s. 8 of Charter and not saved under s. 1–Section 488.1 of Criminal Code of no force or effect–Canadian Charter of Rights and Freedoms, ss. 1, 8 –Criminal Code, R.S.C. 1985, c. C-46, s. 488.1.

 

Professions–Barristers and solicitors–Solicitor-client privilege–Law office search–Provisions of s. 488.1 of Criminal Code setting out procedure to be followed in seizing documents in possession of lawyer impairing solicitor-client privilege to more than minimal extent–Provisions violating s. 8 of Charter and not saved under s. 1–Section 488.1 of Criminal Code of no force or effect–Canadian Charter of Rights and Freedoms, ss. 1, 8–Criminal Code, R.S.C. 1985, c. C-46, s. 488.1.

 

The accused brought an application for a declaration that s. 488.1 of the Criminal Code, which sets out the procedure to be followed in seizing documents in the possession of a lawyer, violates ss. 7 and 8 of the Canadian Charter of Rights and Freedoms. The application was dismissed. The accused appealed.

 

Held, the appeal should be allowed.

 

It was unnecessary to determine whether s. 488.1 violates s. 7 of the Charter. While a seizure undertaken by the state in the course of a criminal investigation can be said to implicate s. 7, and while solicitor-client privilege is encompassed within the principles of fundamental justice, s. 8 of the Charter provides a sufficient framework for analysis. If the procedure mandated by s. 488.1 results in a reasonable search and seizure of the documents in the possession of a lawyer, it accords with the principles of fundamental justice.

Where the state has prescribed a mandatory procedure to be used in seizing documents in a lawyer’s possession, it must have done so in a way which will only minimally impair the principle of solicitor-client confidentiality. If not, then the manner of conducting the search thus mandated will be unreasonable and the prescribing legislation will infringe s. 8 of the Charter.

The essential flaw in the scheme set up by s. 488.1 of the Code is that it provides for a default position which results in the complete and automatic loss of any solicitor-client privilege that may protect the document, without the client’s knowledge that this is happening. If the lawyer is not present when the search warrant is executed, or reasonably soon thereafter, any privilege is lost. The same result follows if the lawyer is present, but fails to assert the privilege and insist on the sealing of the seized documents, for example, because of his own incapacity, negligence or self-interest.

Equally, if the lawyer initially asserts the privilege but thereafter fails to apply for the necessary judicial determination, it is automatically lost. So too, if the lawyer launches the application but fails to observe the required time lines.

It cannot be said that these aspects of the legislative scheme, which significantly impair the protection afforded by the solicitor-client privilege, advance in any way the state interest in investigating crime. The impairment results from the inaction of the lawyer, something which has nothing to do with the urgency of the seizure or its importance to the criminal investigation.

Section 488.1 also impairs the solicitor-client privilege more than minimally in two ways. First, it requires that the lawyer provide the client’s name to the peace officer in order to claim the privilege. The client’s name itself may well be protected by the privilege. While disclosure of the name, at least to the judge, may be necessary at the stage of judicial determination of the privilege issue, the requirement of immediate disclosure to the state in order to claim the privilege at all constitutes more than minimal impairment. Second, the provision permitting the Attorney General to inspect a document on the application to determine the privilege question goes beyond minimal impairment. The effect of this provision is the complete loss of the protection afforded by the very privilege that may subsequently be determined to apply to the document.

In serving the state interest in the investigation of crime, s. 488.1 nevertheless mandates a procedure which more than minimally impairs the solicitor-client privilege. Section 488.1 therefore violates s. 8 of the Charter and a search and seizure made pursuant to it is unreasonable.

Neither the Crown nor the Attorney General of Canada suggested that if s. 488.1 were found to provide for an unreasonable search or seizure, it could be justified under s.

1 of the Charter. Section 488.1 is unconstitutional and of no force or effect.

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Descteaux v. Mierzwinski, [1982] 1 S.C.R. 860, 141 D.L.R. (3d) 592, 44 N.R. 462, 1 C.R.R. 318, 70 C.C.C. (2d) 385, 28 C.R. (3d) 289 (sub nom. Montreal Legal Aid Centre v. Mierzwinski; Landry v. Montreal Legal Aid Centre); Jones v. Smith, [1999] 1 S.C.R. 455, 62 B.C.L.R. (3d) 209 , 169 D.L.R. (4th) 385, 236 N.R. 201, [1999] 8 W.W.R. 364, 60 C.R.R. (2d) 46, 132 C.C.C. (3d) 225, 22 C.R. (5th) 203, apld

 

Other cases referred to

 

Canada (Attorney General) v. Several Clients, [2000] N.S.J. No. 236 (S.C.); Festing v. Canada (Attorney General) (2000), 73 B.C.L.R. (3d) 313, [2000] 5 W.W.R. 413, 73 C.R.R. (2d) 1, 31 C.R.  (5th) 203 (S.C.); Lavallee, Rackel and Heintz v. Canada (Attorney General), [2000] A.J. No. 392 (C.A.); R. v. Claus (1999), 68 C.R.R. (2d) 175, 139 C.C.C. (3d) 47 (Ont. S.C.J.), affd (December 4, 2000), Doc. No. C33030 (Ont. C.A.); R. v. Collins, [1987] 1 S.C.R. 265, 13 B.C.L.R. (2d) 1, 38 D.L.R. (4th) 508, 74 N.R. 276, [1987] 3 W.W.R. 699, 28 C.R.R. 122, 33 C.C.C. (3d) 1, 56 C.R. (3d) 193; White, Ottenheim er & Baker v. Canada (Attorney General) (2000), 187 D.L.R. (4th) 581, 76 C.R.R. (2d) 1, 146 C.C.C. (3d) 28 (Nfld. C.A.)

 

Statutes referred to

 

Canadian Charter of Rights and Freedoms, ss. 1, 7, 8 Criminal Code, R.S.C. 1985, c. C-46, ss. 487, 488.1, as am. Income Tax Act, R.S.C. 1985 (5th Supp.), c. 1, s. 232

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APPEAL from a judgment of Dambrot J. (2000), 70 C.R.R. (2d) 181, 143 C.C.C. (3d) 566 (S.C.J.) dismissing an application for a declaration that s. 488.1 of the Criminal Code is unconstitutional.

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Aaron B. Harnett, for appellant. Michal Fairburn, for respondent.

Peter De Freitas, for the Attorney General of Canada, intervenor.

Michelle K. Fuerst, for the Law Society of Upper Canada, intervenor.

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The judgment of the court was delivered by

 

[1]  GOUDGE J.A.:–In enacting s. 488.1 of the Criminal Code, R.S.C. 1985, c. C-46, as am., in 1985, Parliament created a mandatory procedure for the seizure of documents from the possession of a lawyer. The question on this appeal is whether this section violates the right provided by s. 8 of the Canadian Charter of Rights and Freedoms to be secure against unreasonable search or seizure.

 

[2]  The relevant facts are as follows. On February 8, 1999, a search warrant was executed at the law offices of Turkstra, Mazza in relation to an investigation of the appellant, Jeffrey Fink, for an offence of fraud over $5,000. Counsel was present during this search and made a claim of solicitor-client privilege on behalf of the appellant in respect of the material which was to be seized.

 

[3]  As a result, the police officers carried out the seizure according to the procedure set out in s. 488.1 of the Criminal Code. They did not examine the seized material, but placed it in boxes which were sealed and delivered to the sheriff. The documents were to remain with the sheriff until it could be determined, pursuant to that procedure, whether they should be turned over to the police or returned to counsel because of solicitor-client privilege.

 

[4]  Mr. Fink then applied to the court for a declaration that s. 488.1 violates s. 7 and s. 8 of the Canadian Charter of Rights and Freedoms and is therefore unconstitutional.

 

[5]  On January 6, 2000, Mr. Justice Dambrot dismissed the application. He found that by enacting s. 488.1, Parliament created a mandatory procedure for the seizure of documents from the possession of lawyers rather than leaving it to justices of the peace to fashion their own procedure by attaching conditions each time a warrant is issued to search a lawyer’s office.

 

[6]  Mr. Justice Dambrot went on to conclude that s. 488.1 is properly viewed not as creating a presumptive waiver of solicitor-client privilege, but as a mechanism to advance a claim of privilege. Moreover, he found less than compelling the argument relating to the ways in which s. 488.1 could undermine the privilege. In essence, he concluded that the section did not weaken solicitor-client privilege and, therefore, reasonably balanced the rights of clients against the state interest in the investigation of crime. Hence, he concluded that there was no Charter violation. This is an appeal from that decision.

 

[7]  The constitutionality of s. 488.1 has been the subject of much judicial attention in the last several years. This appeal was argued together with an appeal from Justice Kozak in R. v. Claus (1999), 139 C.C.C. (3d) 47, 68 C.R.R. (2d) 175 (Ont. S.C.J.), who found the section to be unconstitutional. The Alberta Court of Appeal, the Newfoundland Court of Appeal, the British Columbia Supreme Court and the Nova Scotia Supreme Court have all delivered fully reasoned judgments finding s. 488.1 to be unconstitutional. [See Note 1 at end of document]

 

[8]  For the reasons that follow, I have reached the same conclusion. With respect, I disagree with Dambrot J. and would allow the appeal.

 

Analysis

 

[9]  Section 488.1 of the Criminal Code reads as follows:

488.1 Definitions–(1) In this section,

“custodian” means a person in whose custody a package is placed pursuant to subsection (2);

“document”, for the purposes of this section, has the same meaning as in section 321;

“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.

 

(2)  Examination or seizure of certain documents where privilege claimed–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.

 

(3)  Application to judge–Where a document has been seized and placed in custody under subsection (2), 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.

 

(4)  Disposition of application–On an application under paragraph (3)(c), 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.

(5)  Privilege continues–Where the judge determines pursuant to paragraph (4)(d) 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.

(6)  Order to custodian to deliver–Where a document has been seized and placed in custody under subsection (2) and a judge, on the application of the Attorney General, is satisfied that no application has been made under paragraph (3)(a) or that following such an application no further application has been made under paragraph (3)(c), 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.

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

(8)  Prohibition–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).

(9)  Authority to make copies–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.

(10)  Hearing in private–An application under paragraph (3) (c) shall be heard in private.

(11)  Exception–This section does not apply in circumstances where a claim of solicitor-client privilege may be made under the Income Tax Act, R.S.C. 1985, c. 27 (1st Supp.), s. 71.

 

[10]  As Dambrot J. quite correctly pointed out, s. 488.1 does not authorize a police seizure of documents in the possession of a lawyer. That authority arises from a search warrant issued by a judicial officer, generally under s. 487 of the Criminal Code, as am.

 

[11]  This, however, does not insulate s. 488.1 from Charter scrutiny. There is no doubt that because of solicitor-client privilege a justice of the peace must be demanding before authorizing a search of a lawyer’s office pursuant to s. 487, even to the point of attaching special procedures for the execution of the warrant. However, whether or not the issuing justice chooses to attach any such procedures, Parliament, in enacting s. 488.1, has legislated the standard procedure to be followed in carrying out every seizure of documents in the possession of a lawyer. Once Parliament decides to legislate in this way, its work is open to normal Charter scrutiny. Parliament cannot rely on conditions for execution which issuing justices might, or might not, attach to search warrants in particular cases to save legislation that fails to meet Charter requirements.

 

[12]  When documents are to be seized from a lawyer, s. 488.1 is Parliament’s statement of the mandatory procedure to be followed to determine if solicitor-client privilege is to protect those documents from state scrutiny and hence whether the client’s privacy interest in his communications with his lawyer is to be respected. This state action, impacting on this important privacy interest as it does, clearly engages the client’s s. 8 Charter rights.

 

[13]  To put this in the context of the three-step analysis in R. v. Collins, [1987] 1 S.C.R. 265, 33 C.C.C. (3d) 1, it is the third step of that analysis that is at stake in this case. The question is not whether the search is authorized by law (usually s. 487 of the Criminal Code) or if that law is reasonable. Rather, s. 488.1 is the legislated articulation of the manner in which the search is to be carried out. The question is whether the manner thus prescribed is reasonable.

 

[14]  Consistent with this approach, the appellant, the respondent and the intervenor Attorney General of Canada all argue that the Charter analysis required in this case is to be played out against the backdrop of s. 8 and its protection against unreasonable search and seizure.

 

[15]  The intervenor Law Society of Upper Canada urges that s. 488.1 also be tested against s. 7 of the Charter. In my view, that is unnecessary in this case. While a seizure undertaken by the state in the course of a criminal investigation can be said to implicate s. 7 and while solicitor-client privilege is encompassed within the principles of fundamental justice, I think s. 8 provides a sufficient framework for analysis. If the procedure mandated by s. 488.1 results in a reasonable search and seizure of the documents in the possession of a lawyer, it surely accords with the principles of fundamental justice and vice versa.

 

[16]  A seizure governed by s. 488.1 may put at risk the solicitor-client privilege that may protect those documents. The procedure which is mandated by s. 488.1 seeks to accommodate both the right of the state to investigate crime and the right of clients of the lawyer to confidentiality. The issue is whether that statutory procedure constitutes an appropriate accommodation of these two interests, or whether it provides for an unreasonable search and seizure and hence is a violation of the guarantee provided by s. 8 of the Charter.

 

[17]  To address this issue it is important to elucidate the nature of the right of confidentiality which is protected by the solicitor-client privilege and the importance which our law has attached to it.

 

[18]  In the recent case of Jones v. Smith, [1999] 1 S.C.R. 455, 62 B.C.L.R. (3d) 209, Cory J. writing for the majority describes solicitor-client privilege as the highest privilege recognized by the courts and a principle of fundamental importance to the administration of justice. He elaborated on the reasoning behind this conclusion as follows at pp. 474 -76 S.C.R.:

The solicitor-client privilege has long been regarded as fundamentally important to our judicial system. Well over a century ago in Anderson v. Bank of British Columbia (1876), 2 Ch. D. 644 (C.A.), at p. 649, the importance of the rule was recognized:

The object and meaning of the rule is this: that as, by reason of the complexity and difficulty of our law, litigation can only be properly conducted by professional men, it is absolutely necessary that a man, in order to prosecute his rights or to defend himself from an improper claim, should have recourse to the assistance of professional lawyers, . . . to use a vulgar phrase, that he should be able to make a clean breast of it to the gentleman whom he consults with a view to the prosecution of his claim, or the substantiating of his defence . . . that he should be able to place unrestricted and unbounded confidence in the professional agent, and that the communications he so makes to him should be kept secret, unless with his consent (for it is his privilege, and not the privilege of the confidential agent), that he should be enabled properly to conduct his litigation.

Clients seeking advice must be able to speak freely to their lawyers secure in the knowledge that what they say will not be divulged without their consent. It cannot be forgotten that the privilege is that of the client, not the lawyer. The privilege is essential if sound legal advice is to be given in every field. It has a deep significance in almost every situation where legal advice is sought whether it be with regard to corporate and commercial transactions, to family relationships, to civil litigation or to criminal charges.

Family secrets, company secrets, personal foibles and indiscretions all must on occasion be revealed to the lawyer by the client. Without this privilege clients could never be candid and furnish all the relevant information that must be provided to lawyers if they are to properly advise their clients. It is an element that is both integral and extremely important to the functioning of the legal system. It is because of the fundamental importance of the privilege that the onus prope rly rests upon those seeking to set aside the privilege to justify taking such a significant step.

As Lamer C.J. stated in R. v. Gruenke, [1991] 3 S.C.R. 263, at p. 289:

The prima facie protection for solicitor-client communications is based on the fact that the relationship and the communications between solicitor and client are essential to the effective operation of the legal system. Such communications are inextricably linked with the very system which desires the disclosure of the communication.

The solicitor-client privilege was originally simply a rule of evidence, protecting communications only to the extent that a solicitor could not be forced to testify. Yet now it has evolved into a substantive rule. As Dickson J. (as he then was) wrote in Solosky v. The Queen, [1980] 1 S.C.R. 821, at p. 836, “Recent case law has taken the traditional doctrine of privilege and placed it on a new plane. Privilege is no longer regarded merely as a rule of evidence which acts as a shield to prevent privileged materials from being tendered in evidence in a court room.”

Lamer J. (as he then was) expanded on this statement in Descteaux v. Mierzwinski, [1982] 1 S.C.R. 860, at p. 875, when he discussed the content of this substantive rule:

It is quite apparent that the Court in [Solosky] applied a standard that has nothing to do with the rule of evidence, the privilege, since there was never any question of testimony before a tribunal or court. The Court in fact, in my view, applied a substantive rule, without actually formulating it, and, consequently, recognized implicitly that the right to confidentiality, which had long ago given rise to a rule of evidence, had also since given rise to a substantive rule.

It would, I think, be useful for us to formulate this substantive rule, as the judges formerly did with the rule of evidence; it could, in my view, be stated as follows:

1.    The confidentiality of the communications between solicitor and client may be raised in any circumstances where such communications are likely to be disclosed without the client’s consent.

2.    Unless the law provides otherwise, when and to the extent that the legitimate exercise of a right would interfere with another person’s right to have his communications with his lawyer kept confidential, the resulting conflict should be resolved in favour of protecting the confidentiality.

3.    When the law gives someone the authority to do something which, in the circumstances of the case, might interfere with that confidentiality, the decision to do so and the choice of means of exercising that authority should be determined with a view to not interfering with it except to the extent absolutely necessary in order to achieve the ends sought by the enabling legislation.

4.    Acts providing otherwise in situations under paragraph 2 and enabling legislation referred to in paragraph 3 must be interpreted restrictively.

As the British Columbia Court of Appeal observed, solicitor-client privilege is the privilege “which the law has been most zealous to protect and most reluctant to water down by exceptions”. Quite simply it is a principle of fundamental importance to the administration of justice.

 

[19]  The fundamental importance of the solicitor-client privilege is reflected in the vigilance with which courts have protected it from being eroded.

 

[20]  A leading example is Descteaux v. Mierzwinski, [1982] 1 S.C.R. 860, 141 D.L.R. (3d) 592, cited by Cory J. in the passage just quoted. That case began as a motion to quash both a seizure of documents from a law office and the search warrant on which it was based. It required the Supreme Court of Canada to provide guidance on the appropriate procedures for exercising the authority to search lawyers’ offices in view of the confidential nature of their clients’ files. In doing so, the court noted the need for legislative direction in this area. Indeed, s. 488.1, enacted some three years later, might be said to be a response to this observation.

 

[21]  Speaking for the full court, Lamer J. made it clear that where the law authorizes an act which could interfere with solicitor-client confidentiality, such as issuing a search warrant for a lawyer’s office, that authority must be exercised in a manner that avoids interfering with the confidentiality, except to the extent absolutely necessary to achieve the ends of the enabling legislation.

 

[22]  Although he was writing in a pre-Charter context, Lamer J. clearly required that such a search protect the right to confidentiality of the lawyer’s clients as much as possible. The law would sanction no more than minimal impairment of the solicitor-client privilege.

 

[23]  Since the Charter, the privilege has been accorded the same careful protection because of the fundamental importance of this principle of confidentiality to the administration of justice.

 

[24]  In Jones v. Smith, supra, the Supreme Court of Canada was required to weigh the solicitor-client privilege against the safety of members of the public. It determined that only in rare circumstances could the public interest in safety be so compelling that the solicitor-client privilege would have to be compromised. The court found that where public safety was the countervailing public interest there would have to be an imminent risk of serious bodily harm or death to an identifiable person or a group. Only then could the privilege be set aside and then only as little as possible.

 

[25]  Although in dissent on the specifics of the case, the language of Major J. captures the common approach of all members of the court. At p. 469 S.C.R., para. 28 he said:

. . . The solicitor-client privilege is a fundamental common law right of Canadians. That right must be interpreted in light of the Charter which provides for the right of an accused to counsel. Any time such a fundamental right is eroded the principle of minimal impairment must be observed.

 

[26]  It is this approach which, I think, must inform the evaluation of s. 488.1 against s. 8 of the Charter. Where the state has prescribed a mandatory procedure to be used in seizing documents in a lawyer’s possession, has it done so in a way which will only minimally impair the principle of solicitor-client confidentiality? If not, then the manner of conducting the search thus mandated will be unreasonable and the prescribing legislation will infringe s. 8.

 

[27]  The main aspects of the procedure mandated by s. 488.1 may be summarized as follows. Where a peace officer acting pursuant to a search warrant is about to seize a document in a lawyer’s possession, he must afford a reasonable opportunity to the lawyer to claim that a named client has a solicitor-client privilege in respect of the document.

 

[28]  If the lawyer is not present at the premises being searched (and does not arrive after being given a reasonable opportunity), or if the lawyer makes no claim of privilege, the officer will seize the document and be free to examine it and deal with it according to law.

 

[29]  If a claim of privilege is made, the document is sealed pending judicial determination of the existence of solicitor- client privilege in respect of the document.

 

[30]  Following sealing, to preserve the privilege, the claiming party must apply within 14 days for a judicial determination (to be made within a further 21 days of the claim) that the document is protected by solicitor-client privilege. On the adjudication of the privilege claim the judge may inspect the document and may also allow the Attorney General to do so.

 

[31]  If the judge determines that solicitor-client privilege exists, the document remains privileged and is returned. However, if no application is made to assert the privilege or if a claiming party does not adhere to the required time lines, the judge must order that the document be delivered back to the peace officer, who is then free to examine it.

 

[32]  The appellants’ essential complaint about the scheme set up by s. 488.1 is that it provides for a default position which results in the complete and automatic loss of any solicitor- client privilege that may protect the document, without the client’s knowledge that this is happening.

 

[33]  I agree.

 

[34]  If the lawyer is not present when the search warrant is executed, or reasonably soon thereafter, any privilege is lost. The same result follows if the lawyer is present, but fails to claim the privilege, for example, because of his own incapacity, negligence or self-interest (where he too is the subject of the investigation and may wish to shift the blame to his client). Equally, if the lawyer initially asserts the privilege but thereafter fails to apply for the necessary judicial determination, it is automatically lost. So too, if the lawyer launches the application but fails to observe the required time lines.

 

[35]  In each of these ways then, this very important privilege (which it must be remembered is that of the client) may be lost automatically, without judicial determination, and indeed without the client ever knowing about it or being able to make his own assertion of the privilege.

 

[36]  Furthermore, it cannot be said that these aspects of the legislative scheme that significantly impair the protection afforded by the solicitor-client privilege, advance in any way the state interest in investigating crime. The impairment results from the inaction of the lawyer, something which has nothing to do with the urgency of the seizure or its importance to the criminal investigation.

 

[37]  Indeed, the scheme of s. 488.1 contemplates that the privilege may be claimed and pressed to a judicial determination in every case and that this would not be incompatible with the state interest in the investigation of crime. Thus, at no cost to this interest, the significant impairment of the privilege which s. 488.1 permits could be eliminated if every document seized from a lawyer were sealed pending a judicial determination of the issue of solicitor- client privilege. The section simply does not respect the principle of minimal impairment.

 

[38]  In my view, there are two other ways in which the scheme of s. 488.1 more than minimally impairs the solicitor-client privilege.

 

[39]  First, it requires that the lawyer must provide the client’s name to the peace officer in order to claim the privilege. The client’s name itself may well be protected by the privilege and the respondent does not assert that disclosure of the name advances the state interest in investigating crime. While disclosure of the name, at least to the judge, may be necessary at the stage of judicial determination of the privilege issue, the requirement of immediate disclosure to the state in order to claim the privilege at all constitutes more than minimal impairment.

 

[40]  Second, the provision permitting the Attorney General to inspect a document on the application to determine the privilege question goes beyond minimal impairment. The effect of this provision is the complete loss of the protection afforded by the very privilege that may subsequently be determined to apply to the document. The respondent seeks to justify this provision not on the basis of the state interest in investigating crime, but because it assists in a better adjudication of the privilege question itself. In my view, a perfectly satisfactory adjudication of that question is possible with the Crown having generic information about the document, but not the right to inspect it. In this way, the privilege would be more fully protected.

 

[41]  In arguing that s. 488.1 creates no more than a minimal impairment of the solicitor-client privilege, the respondent seeks to draw some comfort from the comments about s. 232 of the Income Tax Act, R.S.C. 1985 (5th Supp.), c. 1 made by Lamer J. in Descteaux, supra, where he indicated that that provision provided safeguards against undue interference with the right to solicitor-client confidentiality.

 

[42]  In my view, these comments do not carry the Crown very far. In Descteaux, Lamer J. was not engaged in a Charter analysis and his comments cannot be read as if he were. Further, while much of s. 232 of the Income Tax Act closely parallels s. 488.1 of the Criminal Code, s. 232(14) is different in an important respect. It provides that once a claim for privilege is asserted, an effort must be made to notify the client of the impending judicial determination. The client is thereby afforded an opportunity to assert the privilege himself, thus reducing the risk that the privilege may be lost without any knowledge or participation by the client. Hence, I do not think Descteaux can be taken as an implicit sanction of s. 488.1 for Charter purposes.

 

[43]  My conclusion is therefore as follows. In serving the state interest in the investigation of crime, s. 488.1 nonetheless mandates a procedure which more than minimally impairs the solicitor-client privilege. The resulting search and seizure is therefore unreasonable for the purposes of s. 8 of the Charter and hence s. 488.1 infringes that Charter right.

 

[44]  Neither the respondent nor the Attorney General of Canada suggests that if s. 488.1 is found to provide for an unreasonable search and seizure, it can be justified under s.

1. Nor do they put forward any basis for doing so. In the result, in my view s. 488.1 must be held to be unconstitutional.

 

[45]  Equally as to remedy, neither the respondent nor the Attorney General of Canada suggest that the court re-craft the legislation by reading down or reading in. In any event, for the reasons given by the Alberta Court of Appeal in Lavallee, supra, I would be disinclined to do so. The procedure for seizing documents in the possession of a lawyer is not without its complexities. I suspect there are a number of ways to craft that procedure so as to satisfactorily meet the constitutional concerns that have been expressed about s. 488.1. This is properly a task for Parliament, not the courts.

 

[46]  In the result, I would allow the appeal, set aside the order of Dambrot J., and declare s. 488.1 unconstitutional and of no force and effect.

 

Appeal allowed.

 

Notes

Note 1:          Lavallee, Rackel and Heintz v. Canada (Attorney General), [2000] A.J. No. 392 (C.A.); White, Ottenheimer & Baker v. Canada (Attorney General) (2000), 187 D.L.R. (4th) 581, 146 C.C.C. (3d) 28 (Nfld. C.A.); Festing v. Canada (Attorney General), [2000] 5 W.W.R. 413, 73 B.C.L.R. (3d) 313 (S.C.); Canada (Attorney General) v. Several Clients, [2000] N.S.J. No. 236 (S.C.).

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