DATE: 20030114

DOCKET: C38248

COURT OF APPEAL FOR ONTARIO

WEILER, ABELLA and CHARRON JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Bradley Reitz,

for the respondent

Respondent

• and -

PIERSANTI & COMPANY

V. Ross Morrison,

for the appellant

Appellant

Heard: January 10, 2003

On appeal from the order of Justice Archie G. Campbell of the Superior Court of Justice dated April 23, 2002.

BY THE COURT:

[1] The appellant appeals from the dismissal of its application for an order quashing a search warrant issued on January 2, 2001, and declaring that s. 487 of the Criminal Code, to the extent that it authorizes the search of law offices and the seizure of documents therein, is unconstitutional and of no force and effect.

[2] The appellant urged this court, as it was urged upon the applications judge, to endorse the reasoning of the British Columbia Court of Appeal in R. v. Festing (2001), 2001 BCCA 612, 159 C.C.C. (3d) 97, and to declare s. 487 unconstitutional in respect of law offices on the ground that the solicitor-client privilege could not be adequately protected by the discretion afforded the issuing justice to impose appropriate conditions in accordance with common law principles. The applications judge rejected this argument and concluded as follows:

For the reasons given in Festing by Romilly J. at first instance at para. 102 –107 I conclude that s. 487 is constitutional in respect of law office searches so long as the search complies with the procedures mandated by the Ontario Court of Appeal in this case and complied with in this case.

[3] We agree with this conclusion. Further, it is our view that the recent decision of the Supreme Court of Canada in R. v. Lavallee (2002), 2002 SCC 61, 167 C.C.C. (3d) 1 (S.C.C.) confirms that the constitutional imperatives for the protection of solicitor-client privilege can be adequately met through the application of common law principles relating to the issuance of search warrants. Counsel correctly noted that the constitutionality of s. 488.1, and not s. 487, was in issue in Lavallee; however, he was unable to articulate why s. 487, if applied in conformity with the principles in that case, would be unconstitutional. It is our view that s. 487 of the Criminal Code is constitutional in respect of law offices provided that the guidelines set out in Lavallee (at para. 49) are followed.

[4] In his oral submissions, counsel for the appellant argued, in the alternative, that the Lavallee principles were not adequately complied with in this case. In our view, there was no evidentiary basis to support counsel’s alternative argument.

[5] For these reasons, the appeal is dismissed.

Released: JAN 14 2003 Signed: “K.M Weiler J.A.”

LVC “R.S. Abella J.A.”

“Louise Charron J.A.”