Criminal Code production orders — protecting client privilege

Since 2004 the Criminal Code has provided for production orders, which are court orders requiring a person, other than a person under investigation for an offence, to produce documents or other data.

These orders bear similarities to search warrants, and some of the same concerns arise when a lawyer is ordered to produce documents that are, or may be, the subject of solicitor-client privilege.

The Supreme Court of Canada has recognized the importance of ensuring the protection of privilege in the search warrant process: see Lavallee, Rackel & Heintz v. Canada (Attorney General) [2002] 3 S.C.R. 209. For many years now, there has also been a practice in British Columbia whereby all applications for a warrant to authorize the search of a law office are made in the Supreme Court of BC and heard by the Associate Chief Justice. This practice recognizes the unique issues surrounding the seizure of documents from a law office.

Because issues of solicitor-client privilege also arise in the authorization and execution of production orders, the Law Society has consulted with the Chief Justice of the Supreme Court and the Chief Judge of the Provincial Court. Each court confirms that the current practice of having the Associate Chief Justice of the Supreme Court hear search warrant applications against law firms will extend to applications for production orders.

A lawyer who receives a production order has professional obligations as set out in Chapter 5, Rule 14 of the Professional Conduct Handbook, which states:

A lawyer who is required, under the Criminal Code, the Income Tax Act or any other federal or provincial legislation, to produce or surrender a document or provide information which is or may be privileged shall, unless the client waives the privilege, claim a solicitor-client privilege in respect of the document.

Should you receive such a Criminal Code production order, contact Michael Lucas or Kensi Gounden at the Law Society for guidance on fulfilling your obilgations.