Law Society intervenes to protect solicitor-client privilege

Law office searches unconstitutional:
Festing v. Canada (Attorney General)

The B.C. Court of Appeal reads down section 487, strikes down 488.1 of the Criminal Code as unconstitutional - but stays the orders pending SCC decision

On November 5, 2001 a majority of the B.C. Court of Appeal declared section 487 of the Criminal Code [police search and seizure under a warrant] unconstitutional to the extent that the section authorizes searches of law offices and seizure of documents.

The Court of Appeal also found that, in the absence of adequate safeguards for the protection of information subject to solicitor-client privilege, the appropriate remedy was to read down that section of the Code to exclude law offices. The Court of Appeal found that s. 488.1 of the Criminal Code [providing a procedure to address solicitor-client privilege during such searches] offered inadequate protection for privilege, and was accordingly contrary to section 8 of the Charter and of no force and effect: Festing v. Canada (Attorney General) 2001 BCCA 612.

The Court has, however, stayed its orders until after determination of the constitutionality of section 488.1 in four other appeals before the Supreme Court of Canada.

The Law Society was an intervenor before the B.C. Supreme Court and the Court of Appeal in support of protecting solicitor-client privilege.

With respect to s. 488.1 of the Code, the Court of Appeal approved the reasons of Mr. Justice Romilly of the B.C. Supreme Court who had found that section 488.1 inadequately protects solicitor-client privilege. If a lawyer for any reason fails to act in compliance with s. 488.1, privilege attached to any documents seized by the police is lost, or effectively waived. Moreover, privilege will have been waived, not by the client to whom the privilege rightly belongs, but by his or her lawyer.

Appeal Courts in Alberta, Nova Scotia and Ontario have previously struck down section 488.1 as unconstitutional; the Newfoundland Court of Appeal found that, while the section breached s. 8 of the Charter, it could be saved by application of the constitutional remedies of severance and reading in: see Lavallee, Rackel and Heintz v. Canada (Attorney General) (2000) 143 C.C.C. (3d) 187 (Alta C.A.); R. v. Claus (2000), 149 C.C.C. (3d) 336 (Ont. C.A.); R. v. Fink (2000), 149 C.C.C. (3d) 321 (Ont. C.A.); Canada (Attorney General) v. Several Clients, [2000] N.S.J. No. 384 (C.A.) (Q.L.) and White, Ottenheimer & Baker v. Canada (Attorney General) (2000), 146 C.C.C. (3d) 28 (Nfld. C.A.).