Supreme Court of Canada upholds protection of privilege in law office searches

On September 12 the Supreme Court of Canada struck down section 488.1 of the Criminal Code as unconstitutional since the section inadequately protects solicitor-client privilege in police searches of law offices, resulting in unreasonable search and seizure that infringes section 8 of the Charter of Rights and cannot be justified under section 1 of the Charter: Lavallee, Rackel & Heintz v. Canada (Attorney General); White, Ottenheimer & Baker v. Canada (Attorney General); R. v. Fink 2002 SCC 61. The Federation of Law Societies of Canada was an intervenor before the Supreme Court of Canada on behalf of Canadian law societies.

The Supreme Court of Canada considered the constitutionality of section 488.1 by way of three separate appeals. The Court upheld appeal court decisions from Alberta (Lavalle) and Ontario (Fink), which had found section 488.1 unconstitutional, and overturned an appeal court decision from Newfoundland and Labrador (White) in which the court had used the remedial techniques of severance and reading-in to save the impugned section.

[Last year a majority of the BC Court of Appeal declared section 488.1 unconstitutional and read down section 487, which authorizes search warrants, to exclude its application to law offices: Festing v. Canada (Attorney General) 2001 BCCA 612. The Court of Appeal stayed its orders until two weeks after the outcome of the Supreme Court of Canada decision in Lavallee. On the Crown's application for leave to appeal to the Supreme Court of Canada, the Court took the unusual step of remanding the case to the BC Court of Appeal for further consideration in light of the Lavallee decision. The stay of the Court of Appeal decision remains in effect.]

The issue before the Supreme Court of Canada in Lavallee was whether section 488.1 of the Criminal Code, which sets out a procedure determining a claim of solicitor-client privilege in relation to documents seized from a law office under a warrant, infringed section 8 of the Charter of Rights and Freedoms against unreasonable search and seizure. The section 488.1 procedure requires that the material be sealed at the time of the search, that the lawyer make application within strict timelines for a determination that the material is intended to be protected by privilege and that, with the permission of the court, the Crown may be permitted to examine the material in order to assist in a determination of the existence of privilege.

The Court (L'Heureux-Dubé, Gonthier and LeBel JJ dissenting in part) found that section 488.1 more than minimally impairs solicitor-client privilege and amounts to an unreasonable search and seizure contrary to section 8 of the Charter. Its constitutional failings can result from: (1) the absence or inaction of the solicitor to claim the privilege; (2) the naming of clients; (3) the fact that notice is not given to the client; (4) the fact that privilege must be claimed within strict time limits; (5) an absence of discretion on the part of the judge determining the existence of solicitor-client privilege; and (6) the possibility of the Attorney General's access prior to that judicial determination.

The Court found that the principal fatal feature of the statutory scheme is the potential breach of solicitor-client privilege without the client's knowledge, let alone consent. The Court noted that privilege does not come into being by an assertion of a privilege claim; it exists independently. Section 488.1 gives the opportunity to protect privileged information to the lawyer, but not to the client.

Where the interest at stake is solicitor- client privilege, which is a principle of fundamental justice and a civil right of supreme importance in Canadian law, the usual exercise of balancing privacy interests and the exigencies of law enforcement is not particularly helpful because the privilege is a positive feature of law enforcement, not an impediment to it. Given that solicitor- client privilege must remain as close to absolute as possible to retain its relevance, the Court must adopt stringent norms to ensure its protection. The procedure set out in s. 488.1 must minimally impair solicitor-bclient privilege to pass Charter scrutiny.

The Court found that another fatal flaw was an absence of judicial discretion in the determination of the validity of an asserted claim of privilege.

The provision in s. 488.1(4)(b), which permits the Attorney General to inspect the seized documents if the judge is of the opinion that it would materially assist him or her in deciding whether the document is privileged, is also an unjustifiable impairment of the privilege.

The Court articulated the general principles that govern the searches of law offices as a matter of common law until Parliament, if it sees fit, re-enacts legislation on the issue:

1. No search warrant can be issued with regard 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 as 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.

If you have questions, please contact any of the following lawyers at the Law Society office:

Kensi Gounden, Staff Lawyer, Professional Conduct (
Michael Lucas, Staff Lawyer, Policy & Planning (
Tim Holmes, Manager of Professional Conduct (
Jean Whittow, QC, Deputy Executive Director (