DATE: 20001222

DOCKET: C33916

COURT OF APPEAL FOR ONTARIO

RE: PIERSANTI & COMPANY (Appellant) - and - HER MAJESTY THE QUEEN (Respondent)

BEFORE: MOLDAVER, MacPHERSON and SIMMONS JJ.A.

COUNSEL: V. Ross Morrison

For the appellant

Peter De Freitas

For the respondent

HEARD: December 20, 2000

On appeal from the order of Justice Michael R. Dambrot dated February 29, 2000.

E N D O R S E M E N T

[1] We are not persuaded that the issuing justice failed to turn his mind to the question of whether the items to be seized were privileged. We are, however, satisfied that he failed to attach terms of execution to the warrant designed to protect the right to confidentiality of the lawyer's clients as much as possible.

[2] Because s. 488.1 of the Criminal Code has been found to be unconstitutional, the procedures to be followed when issuing a search warrant in connection with a law office are those set forth in Descoteaux v. Mierzwinski (1982), 1982 22 (SCC), 70 C.C.C. (2d) 385 (S.C.C.). As Justice Lamer pointed out at p.414 of that decision, the issuing justice "must in any event attach terms of execution to the warrant designed to protect the right to confidentiality of the lawyer's clients as much as possible."

[3] It follows, in our view, that the warrant must be quashed. However, having regard to the particular circumstances of this case, the Crown shall be entitled to retain the documents in its possession for 20 days in order to apply for a new search warrant. The documents will of course remain sealed in the interim.

"M.J. Moldaver J.A."

"J.C. MacPherson J.A."

"J. Simmons J.A."