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 SCC 61, [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.
Descteaux v. Mierzwinski, [1982] 1 S.C.R. 860, 141 D.L.R.
(3d) 592, [1982] 1 S.C.R. 860, 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, [1999] 1 S.C.R. 455, 236 N.R. 201, [1999] 8 W.W.R. 364, 60 C.R.R. (2d)
46, [1999] 1 S.C.R. 455, 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, [1987] 1 S.C.R. 265, 74 N.R. 276, [1987] 3 W.W.R. 699, 28 C.R.R.
122, [1987] 1 S.C.R. 265, 33 C.C.C. (3d) 1, 56 C.R. (3d) 193; White, Ottenheimer
& Baker v. Canada (Attorney General) (2000), 187 D.L.R. (4th)
581, [2000] 5 W.W.R. 413, 73 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
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.
Counsel
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.
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
[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:
- 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.
- 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.
- 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.
- 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.
- 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.).