Descôteaux et al. v. Mierzwinski, [1982] 1 S.C.R. 860

SUPREME COURT OF CANADA

Descôteaux et al. v. Mierzwinski, [1982] 1 S.C.R. 860

Date: 1982-06-23

Simon Descôteaux and Centre communautaire juridique de Montréal Appellants;

and

Alexandre Mierzwinski Respondent;

and

The Attorney General of the Province of Quebec and the Commission des services juridiques Interveners;

and

André Landry, Normand Huneault, the Quebec Bar and the Commission des droits de la personne Mis en cause.

File No.: 16113.

1981: October 27, 28; 1982: June 23.

Present: Martland, Ritchie, Dickson, Beetz, Estey, Chouinard and Lamer JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC

Criminal law — Search and seizure — False statement by legal aid applicant regarding his income — Warrant issued to search legal aid offices — Legal aid application form seized — Solicitor-client privilege — Right to have communications with lawyer kept confidential — Right reflected in substantive rule and rule of evidence (privilege) — Extent of the power of a justice to authorize a search warrant with terms of execution — Scope of this power with regard to law firms — Criminal Code, s. 443.

Evidence — Solicitor-client privilege False statement by legal aid applicant regarding his income — Legal aid application form seized — Whether information supplied by applicant is privileged — Point in time when solicitor-client relationship arises.

In order to obtain proof that an applicant for legal aid committed an indictable offence by incorrectly reporting a lower income in order to be eligible for such services, two peace officers presented themselves at a legal aid bureau with a search warrant. This warrant related to certain documents, including an «Application for Legal Aid» form which contained, inter alia, information on applicant's financial situation. The search was made in the presence of the syndic of the Bar and the police

[page 861]

officers agreed to receive the documents in a sealed envelope without examining them. Appellants' application for certiorari to quash the seizure on the ground that the documents seized were protected by solicitor-client privilege was dismissed both in the Superior Court and in the Court of Appeal.

Held: The appeal should be dismissed.

All information which a person must provide in order to obtain legal advice and which is given in confidence for that purpose enjoys the privileges attached to confidentiality. This confidentiality attaches to all communications made within the framework of the solicitor-client relationship, to the lawyer as well as to his employees. It arises even before the retainer is established, as soon as the client takes the first steps in approaching a law firm. It may be invoked in any circumstances where such communications are likely to be disclosed without the client's consent. However, communications which are criminal in themselves or that are made with a view to obtaining legal advice to facilitate the commission of a crime will not be privileged.

A justice of the peace has no jurisdiction to order the seizure of documents that would not be admissible in evidence in court on the ground that they are privileged. Before authorizing a search of a lawyer's office, he should even refuse to issue the warrant unless he is satisfied that there is no reasonable alternative to the search. If he issues it, he should attach terms of execution to the warrant designed to protect the right to confidentiality of the lawyer's clients as much as possible.

In the case at bar, the communications made by the applicant with respect to his financial means are criminal in themselves since they constitute the material element of the crime charged. These communications are accordingly not protected by the privilege and the justice had jurisdiction to order the seizure. However, all other information contained in the "Application for Legal Aid" form remains protected. The search was the only reasonable alternative and the procedure followed during the seizure was proper and valid.

R. v. Littlechild (1979), 1979 ABCA 321, 51 C.C.C. (2d) 406; Re Borden & Elliott and The Queen (1975), 1975 CanLII 739 (ON CA), 30 C.C.C. (2d) 337 (Ont. S.C.), approved; Solosky v. The Queen, 1979 CanLII 9 (SCC), [1980] 1 S.C.R. 821; Re Pacific Press Ltd. and The Queen et al. (1977), 1977 CanLII 1922 (BC SC), 37 C.C.C. (2d) 487, considered; Berd v. Lovelace (1577), 21 E.R. 33; Dennis v. Codrington (1580), 21 E.R. 53; Minter v. Priest, [1930] A.C. 558; R. v. Cox and Railton (1884), 14 Q.B.D. 153; R. v.Colvin, Ex parte Merrick et al. (1970), 1970 CanLII 266 (ON SC), 1 C.C.C. (2d) 8;

[page 862]

Re B.X. Development Ltd. and The Queen (1976), 36 C.R.NS. 313 (B.C. S.C.); Re Alder et al. and The Queen (1977), 1977 CanLII 2098 (AB SCTD), 37 C.C.C. (2d) 234; Attorney General of Quebec v. T., G., W., R. and C. (1977), 1977 CanLII 3355 (QC CQ), 2 C.R. (3d) 30; Re Director of Investigation and Research and Canada Safeway Ltd. (1972), 1972 CanLII 1028 (BC SC), 26 D.L.R. (3d) 745; Re Director of Investigation and Research and Shell Canada Ltd. (1975), 1975 CanLII 2217 (FCA), 22 C.C.C. (2d) 70; Re Presswood and Delzotto (1975), 1975 CanLII 367 (ON SC), 36 C.R.N.S. 322; Re B.X. Development Ltd. and The Queen (1976), 1976 CanLII 1084 (BC CA), 31 C.C.C. (2d) 14 (B.C. C.A.); Re Steel and The Queen (1974), 1974 CanLII 897 (ON CJ), 21 C.C.C. (2d) 278; Re B and The Queen (1977), 1977 CanLII 2032 (ON CJ), 36 C.C.C. (2d) 235; Re Borden & Elliott and The Queen (1975), 1975 CanLII 739 (ON CA), 30 C.C.C. (2d) 337 (Ont. C.A.), referred to.

APPEAL from a judgment of the Court of Appeal of Quebec affirming a judgment of the Superior Court, [1978] C.S. 792, dismissing appellants' application for certiorari. Appeal dismissed.

Jean-Marie Larivière and Jean-Pierre Lussier, for the appellants,

Pierre Robert and Sarto Blouin, for the respondent and the intervener the Attorney General of the Province of Quebec.

François Aquin and Jocelyne Jarry, for the intervener the Commission des services juridiques.

English version of the judgment of the Court was delivered by

LAMER J.—A citizen who lies about his financial means in order to obtain legal aid is committing a crime. This appeal concerns the right of the police to be authorized by a search warrant to search a legal aid bureau and seize the form filled out by the citizen at his interview, for purposes of proving that this crime was committed. This issue raises several others, including, in particular, the scope of and procedures for exercising the authority to search lawyers' offices, in view of the confidential nature of their clients' files. This appeal will also give everyone an opportunity to note the deficiencies in the law in this area and the limited ability of the courts to compensate for them since their role is not primarily legislative.

[page 863]

FACTS

Two peace officers presented themselves at the premises of a legal aid bureau in the judicial district of Montreal with the following search warrant:

ATTENDU qu'il appert de la dénonciation assermentée de:

WHEREAS, it appears on the oath of

[TRANSLATION]

1848 Gilles Bertrand

M.U.C. Peace Officer

10 St. Antoine Est, Mtl

[TRANSLATION] File No.

02-78-05-03-005

Q.P. file No. on behalf of

police force/complainant organization

Que dans la ville de St Laurent district Montreal

That in the City of District

Le 19 ,

on the [TRANSLATION] May 4, 1978, 19 ,

[TRANSLATION] Between January 1, 1975 and January 1, 1978 an indictable offence was committed, to wit a false pretence; Mr. Marcellein [sic] Ledoux reported a lower income in order to be eligible for legal aid services, contrary to section 324 of the Criminal Code, and that documents to wit: a legal aid application form, lawyer's retainer and other documents concerning this case.

These documents are allegedly in these premises and will provide evidence concerning the commission of the said offence.

Et que les dites choses ou quelques parties d'entre elles se trouvent dans

And that the said things or some part of them are in

de/of

au no./at no. 790 de la rue/of boul. Laurentien Street

à/at Ville St Laurent district/district of Montreal

ci-après appelé les lieux;

hereinafter called the premises;

A CES CAUSES, les présentes ont pour objet de vous autoriser à entrer (indiquer à

THIS IS, THEREFORE, to authorize and require you to enter

Jour & nuit

(quelles heures) dans les dits lieux et à

rechercher les dites choses (indicate time) the said premises, and to

search for the said things

et les rapporter devant moi ou tout autre juge pour le district

[page 864]

and to bring them before me, or some other Judge of the Peace for the district

Donné sous mon seing à Montreal District Montreal

Given under my seal at District of

le

on the [TRANSLATION] May 4, 1978

J.S.P./Juge de Paix

[TRANSLATION] acting in and for the province of Quebec

RETURNABLE

We do not know the wording of the information that led respondent justice of the peace to authorize the search and seizure of the documents described in the warrant; however, at the hearing counsel agreed to admit for purposes of this appeal that the contents of the information were as set out in the warrant.

The syndic of the Bar* intervened when the warrant was being executed and, as a result, the two mis en cause police officers did not search the premises, but agreed to receive, without even examining them, since they were in a sealed envelope, documents they were told were those they were looking for. No one has yet seen what the envelope contains, not even the judges of this Court, and everyone agreed not to open the envelope before being authorized to do so by a judgment of this Court. All are agreed, moreover, that it contains two forms completed by Marcellin Ledoux and by a lawyer employed by the Centre communautaire juridique de Montréal [Montreal Community Legal Centre], together with a notice of refusal, and that the information contained in this application for legal aid concerns the matters found in the following printed form:

[page 865]

[page 866]

[1]

It should be noted that at the bottom of the form the lawyer is asked to enter his "professional notes" on the back of the document.

This form must be completed by those applying for legal aid. This is a requirement of the Act (Legal Aid Act, R.S.Q. 1977, c. A-14).

64. An application for legal aid must set forth the financial condition of the applicant and the basis of his claim, all the information determined in the regulations and any additional relevant information required by the corporation.

This requirement is aimed at allowing the bureau director to determine whether an applicant is eligible having regard to s. 63 of the same Act, the pertinent part of which reads as follows:

63. The general manager shall, within the scope of the regulations, grant legal aid to any economically under-privileged person establishing the probable existence of a right.

Those who do not comply with the requirement will be deprived of the services of a lawyer paid by the bureau, in the same way as those who do not meet the eligibility criteria.

[page 867]

It should also be noted that the information on the first page of the form deals principally with the financial situation of the applicant for purposes of determining whether he is eligible for aid as an economically underprivileged person, and that the professional notes on the reverse concern the probable existence of the basis of his claim. These professional notes could very well record the applicant's account of the facts which lead him to apply for aid and on which the bureau will decide the probable existence of the basis of his right.

IN THE SUPERIOR COURT

After the documents had been seized and sealed, Mr. Descôteaux and the legal aid bureau (le Centre communautaire juridique de Montréal) presented to a judge of the Superior Court, district of Montreal, a motion for the issuance of a writ of certiorari requesting that the seizure be quashed on the grounds of nullity and requesting the Superior Court judge to order the justice of the peace to return the sealed envelope and its contents to them.

The motion was dismissed, but the judge amended the wording of the warrant, stating that [TRANSLATION] "the words 'other documents concerning this case' should be struck out and no longer regarded as forming part of the said search warrant".

The Superior Court judge stated that he was of the view that solicitor-client privilege could be invoked as soon as confidentiality was threatened, "without waiting until the person or persons disregarding the privilege attempted to tender the information thus obtained as evidence". He found, however, that the documents seized were not privileged since they had been prepared before the solicitor-client relationship came into existence ([1978] C.S. 792, at p. 799):

[TRANSLATION] Returning now to the problem raised by applicants, I have come to the conclusion that the documents seized, namely two legal aid application forms and one refusal form, are not privileged. The application for legal aid is nothing more or less than a descriptive form filled out by a person wishing to obtain legal aid to let the organization know that he meets the eligibility requirements. There is no relationship at all

[page 868]

between the information contained in this form, which deals with the applicant's civil status, matrimonial status and financial situation, and the information he may provide to his counsel in order to obtain legal advice or representation in litigation. Moreover, there is not even a solicitor-client relationship at the time this form is completed, and the retainer does not come into existence until the applicant has been accepted by the appropriate authority, which, in so doing, will have decided that he meets the eligibility requirements. It is only after this administrative decision has been made that there will be created between the applicant citizen and the legal aid lawyer this type of privileged relationship that is scrupulously protected by the common law.

I am unable to arrive at any other conclusion, since it seems clear to me that these documents are records of an administrative nature that are necessary precisely because of the nature of the services sought by the applicant. Finally, I think that the "declaration" which the applicant must sign in the presence of a witness and which appears at the bottom of the "application for legal aid" confirms my opinion that this document is not privileged:

I declare that this information is true and I undertake to inform your bureau or corporation of any change in my economic situation.

I have been informed of my right to be represented by a lawyer of my choice and I have chosen to be represented by:

A lawyer employed full-time by the corporation/a lawyer in private practice.

There is not yet any solicitor-client relationship; at the very most the applicant has expressed his desire to have a lawyer who is employed by the legal aid bureau or a private practitioner, without any further information concerning his identity. Moreover, the undertaking by the applicant to inform the "bureau" or the "corporation" of any change in his economic situation indicates most clearly, in my view, that this type of information is not regarded by the applicant himself as confidential or as forming part of the consultation or legal advice sought from a lawyer whose identity he does not yet know. This seems to me sufficient to dispose of the case of the legal aid application forms, and the same comments apply, it goes without saying, to the notice of refusal. These documents, owing to their very nature and to the position the citizen is in when they are filled out, do not fall within the category of privileged communications . . .

(Emphasis added.)

[page 869]

Finally, I repeat, the Superior Court judge amended the warrant by striking out the words "other documents concerning this case" on the ground that the authorization to search and seize conferred by those words was too general and imprecise.

IN THE COURT OF APPEAL

The Court of Appeal adopted the conclusions of the Superior Court judge, together with his reasons. To these Bélanger J.A. added on behalf of the Court that in any event solicitor-client privilege could not have operated to protect the communication, since the latter was precisely what had been resorted to in order to mislead a representative of the legal aid bureau. On that matter, he stated the following:

[TRANSLATION] In the case at bar the communications or documents that are alleged to be confidential are those referred to in the charge as having been used in the commission of the offence in question. Apart from common law principles, they are no more privileged than if the same information and documents had been used to mislead the lawyer himself in order to fraudulently obtain his services on special terms. In either case I do not think that false communications made to the eventual victim who will have to bear the cost of the services are confidential in any way. In short, a communication made to a representative of the Commission des services juridiques [Legal Services Commission] is in no way confidential if it is an element of an offence committed to the latter's prejudice, since in such circumstances there is no confidentiality between solicitor and client.

I think that at this point I should state my findings in the case at bar; I shall give reasons for them later.

In my view it was correctly decided that it is not necessary to wait for the trial or preliminary inquiry at which the communication is to be adduced or sought in evidence before raising its confidentiality. With all due respect for the opposite view, I am of the opinion, however, that in principle information concerning one's financial means the basis of the claim, and any other information required by the corporation or the regulations (Legal Aid Act, s. 64) which a person applying for legal aid must provide in order to obtain the services of a

[page 870]

lawyer is, except in the exceptional cases I shall deal with later, privileged. I share the opinion of the Quebec Court of Appeal, however, that, in the case at bar, the information concerning Marcellin Ledoux's financial means had lost the benefit of being privileged since, as alleged in the search warrant, it was communicated with a view to criminally obtaining a benefit and, consequently, fell within one of the common law exceptions to the principle of privilege. But since it is alleged that the crime was committed by means of false pretences only with respect to the applicant's financial means, the professional notes, which concern the basis of his claim, remain privileged.

I do not intend to repeat here everything that others have said, on numerous occasions and very clearly and completely, about solicitor-client privilege, or about the issuance and execution of search warrants.

I think, however, that I should make a few remarks about the existence and effects of a person's right to have his communications with his lawyer kept confidential; I shall then deal more particularly with the search power provided for in the Criminal Code.

THE RIGHT TO CONFIDENTIALITY

It is not necessary to demonstrate the existence of a person's right to have communications with his lawyer kept confidential. Its existence has been affirmed numerous times and was recently reconfirmed by this Court in Solosky v. The Queen, 1979 CanLII 9 (SCC), [1980] 1 S.C.R. 821, where Dickson J. stated (at p. 839):

One may depart from the current concept of privilege and approach the case on the broader basis that (i) the right to communicate in confidence with one's legal adviser is a fundamental civil and legal right, founded upon the unique relationship of solicitor and client, and (ii) a person confined to prison retains all of his civil rights, other than those expressly or impliedly taken from him by law.

[page 871]

There is no denying that a person has a right to communicate with a legal adviser in all confidence, a right that is "founded upon the unique relationship of solicitor and client" (Solosky, supra). It is a personal and extra-patrimonial right which follows a citizen throughout his dealings with others. Like other personal, extra-patrimonial rights, it gives rise to preventive or curative remedies provided for by law, depending on the nature of the aggression threatening it or of which it was the object. Thus a lawyer who communicates a confidential communication to others without his client's authorization could be sued by his client for damages; or a third party who had accidentally seen the contents of a lawyer's file could be prohibited by injunction from disclosing them[2].

Owing to its importance, in addition to these general remedies available to the holder, various statutes, both federal and provincial, recognize this right by giving it additional, specific protection.

These include, for example, statutes governing the practice of the profession of barrister or advocate (in Quebec, the Act respecting the Barreau du Québec, R.S.Q. 1977, c. B-1, s. 131)[3] and certain provincial charters of rights (in Quebec, the Charter of human rights and freedoms, R.S.Q. 1977, c. C-12, s. 9)[4].

[page 872]

It is again owing to the importance of this right that certain statutes contain special provisions applicable in situations where, were it not for those special provisions, there would be undue interference with the right to confidentiality. An example of such concern for that right can be found in the safeguards set out in s. 232 of the Income Tax Act, 1970-71-72 (Can.), c. 63.

There is no doubt that this right belonging to a person in his dealings with others, including the State, is part of our Quebec public law as well as of the common law.

Although we recognize numerous applications of it today, the right to confidentiality did not first appear until the 16th century, and then did so as a rule of evidence (see, inter alia, Berd v. Lovelace (1577), 21 E.R. 33; Dennis v. Codrington (1580), 21 E.R. 53).

The rule of evidence is well known; it has often been stated, This Court referred to it again recently in Solosky. That decision sets out the conditions precedent to the existence of the privilege, as well as its limits and exceptions. It should be pointed out that the substantive conditions precedent to the existence of the privilege, which the judges have gradually established and defined, are in fact the substantive conditions precedent to the existence of the right to confidentiality, the former being merely the earliest manifestation of the latter. There is no need to list those conditions exhaustively here or to review all the nuances that have been developed by the courts over the years. It will be sufficient to review them in broad outline and to emphasize certain aspects of particular relevance to this appeal.

The following statement by Wigmore (8 Wigmore, Evidence, para. 2292 (McNaughton rev, 1961)) of the rule of evidence is a good summary, in my view, of the substantive conditions precedent to the existence of the right of the lawyer's client to confidentiality:

Where legal advice of any kind is sought from a professional legal adviser in his capacity as such, the communications relating to that purpose, made in confidence

[page 873]

by the client, are at his instance permanently protected from disclosure by himself or by the legal adviser, except the protection be waived.

Seeking advice from a legal adviser includes consulting those who assist him professionally (for example, his secretary or articling student) and who have as such had access to the communications made by the client for the purpose of obtaining legal advice.

There are exceptions. It is not sufficient to speak to a lawyer or one of his associates for everything to become confidential from that point on. The communication must be made to the lawyer or his assistants in their professional capacity; the relationship must be a professional one at the exact moment of the communication. Communications made in order to facilitate the commission of a crime or fraud will not be confidential either, regardless of whether or not the lawyer is acting in good faith.

THE SUBSTANTIVE RULE

Although the right to confidentiality first took the form of a rule of evidence, it is now recognized as having a much broader scope, as can be seen from the manner in which this Court dealt with the issues raised in Solosky.

Solosky was an inmate at Millhaven penitentiary. He was seeking a declaration that henceforth all properly identified items of solicitor-client correspondence would be forwarded to their respective destinations unopened.

The inmates' right to confidentiality conflicted with the Penitentiary Act, R.S.C. 1970, c. P-6, and more particularly with Regulation 2.18 of the Penitentiary Service Regulations, allowing the director of the institution to order censorship of correspondence to the extent considered necessary

[page 874]

or desirable for the security of the institution. On behalf of this Court Dickson J., stated the following (at p. 841):

Counsel for the Crown submits there are three alternative interpretations of the scope of Regulations 2.17 and 2.18 which may govern the extent of the authority of the institutional head in dealing with an envelope which appears to have originated from a solicitor, or to be addressed to a solicitor, in circumstances where the institutional head has reason to believe that the unrestricted and unexamined passage of mail to or from the particular inmate in question represents a danger to the safety and security of the institution:

(a) he may nonetheless permit the letter to be delivered unopened and unexamined to the inmate;

(b) he may suspend the inmate's privilege to receive mail, in respect of that letter, pursuant to sections 2.17 and 2.18 of the Penitentiary Service Regulations.

(c) he may order that the envelope be subject to opening and examination to the minimum extent necessary to establish whether it is properly the subject of solicitor-client privilege.

Counsel contends that to interpret the Regulations as requiring the first of these alternatives is to leave the institutional head without the authority he requires to control the potential passage of contraband, or of correspondence which may endanger the safety of the institution, under the guise of confidential communications passing between inmate and solicitor. I agree. I would also reject the second as providing no solution. I agree that the third alternative represents that interpretation of the scope of the Regulations which permits to an inmate the maximum opportunity to communicate with his solicitor through the mails that is consistent with the requirement to maintain the safety and security of the institution.

In my view, the "minimum extent necessary to establish whether it is properly the subject of solicitor-client privilege" should be interpreted in such manner that (i) the contents of an envelope may be inspected for contraband; (ii) in limited circumstances, the communication may be read to ensure that it, in fact, contains a confidential communication between solicitor and client written for the purpose of seeking or giving legal advice; (iii) the letter should only be read if there are reasonable and probable grounds for believing the contrary, and then only to the extent necessary to determine the bona fides of the communication; (iv) the authorized penitentiary official who examines the envelope, upon ascertaining that the envelope contains nothing in breach of

[page 875]

security, is under a duty at law to maintain the confidentiality of the communication. Paragraph 7c. of Directive 219 underlines this point.

It is quite apparent that the Court in that case 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:

1. The confidentiality of communications between solicitor and client may be raised in any circumstances where such communications are likely to be disclosed without the client's consent.

2. 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.

3. 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.

4. Acts providing otherwise in situations under paragraph 2 and enabling legislation referred to in paragraph 3 must be interpreted restrictively.

[page 876]

THE RULE OF EVIDENCE

The rule of evidence is formulated by Cross (Cross on Evidence, 5th ed., 1979) as follows (at p. 282):

In civil and criminal cases, confidential communications passing between a client and his legal adviser need not be given in evidence by the client and, without the client's consent, may not be given in evidence by the legal adviser in a judicial proceeding ...

The rule of evidence does not in any way prevent a third party witness (I am referring here to someone other than an agent of the client or the lawyer) from introducing in evidence confidential communications made by a client to his lawyer. It is important to note, however, that before allowing such evidence to be introduced and in determining to what extent to allow it, the judge must satisfy himself, through the application of the substantive rule (No. 3), that what is being sought to be proved by the communications is important to the outcome of the case and that there is no reasonable alternative form of evidence that could be used for that purpose.

CONFIDENTIALITY IN THE CASE AT BAR

In the case at bar the principal issue is to determine when the solicitor-client relationship, which confers the confidentiality protected by the substantive rule and the rule of evidence, arises.

The Superior Court judge, as we have seen, was of the view that this relationship, and consequently the right to confidentiality, did not arise until the legal aid applicant had been accepted, that is, until the retainer was established.

When dealing with the right to confidentiality it is necessary, in my view, to distinguish between the moment when the retainer is established and the moment when the solicitor-client relationship arises. The latter arises as soon as the potential client has his first dealings with the lawyer's office in order to obtain legal advice.

The items of information that a lawyer requires from a person in order to decide if he will agree to

[page 877]

advise or represent him are just as much communications made in order to obtain legal advice as any information communicated to him subsequently. It has long been recognized that even if the lawyer does not agree to advise the person seeking his services, communications made by the person to the lawyer or his staff for that purpose are nonetheless privileged (Minter v. Priest, [1930] A.C. 558; Phipson on Evidence, 12th ed., 1976, p. 244, No. 589; 8 Wigmore, Evidence (McNaughton rev. 1961), p. 587, para. 2304).

Moreover, the same applies not only to information given before the retainer is perfected concerning the legal problem itself, but also to information concerning the client's ability to pay the lawyer and any other information which a lawyer is reasonably entitled to require before accepting the retainer. First, this information of an administrative nature is just as related to the establishment of the professional relationship as any other information; this is especially clear when, as in the case at bar, the legal aid applicant "must set forth [his] financial means . . . and the basis of his claim". In addition, information of this nature that a person gives his lawyer for that purpose may also be highly confidential and would have been kept secret by that person were it not for that person's need of the assistance of a legal adviser.

For example, the legal aid form requires the applicant to provide information concerning his dependants. A person could thus be forced to disclose to the legal aid bureau a paternity that had until then been kept secret, in order to establish his onerous financial obligations and consequently his limited means. One can imagine, given the form the applicant must complete, numerous other situations where the information given would be highly personal.

I therefore do not think that a distinction should be made between information that must be given in order to establish the probable existence of a valid claim and that given to establish eligibility from the point of view of financial means, since, on

[page 878]

the one hand, information concerning the person's financial situation may be just as highly confidential as any other information and since, on the other hand, the fact of being unable to meet the eligibility requirements respecting financial means is no less fatal to the ability to obtain the services sought.

The issue we are concerned with was recently raised in Alberta in R. v. Littlechild (1979), 1979 ABCA 321, 51 C.C.C. (2d) 406.

An individual was charged with having defrauded a store by using an N.S.F. cheque. In order to prove that the accused knew that his bank had ordered a suspension of all operations concerning his bank accounts and that consequently he knew that his cheque would not be honoured, the Crown wished to introduce in evidence communications that the accused had made previously to a legal aid bureau employee.

During an interview and on a form similar to the one involved in the case at bar, the accused had provided certain information concerning his financial means to this employee, who was not a lawyer, in order to establish his eligibility for the legal aid bureau's services. According to the Crown, part of this information dealt in particular with the fact that the accused knew that he no longer had access to the funds in his bank accounts.

The trial judge refused on his own motion to allow the Crown to introduce these communications in evidence.

The Attorney General appealed.

Laycraft J.A., rendering judgment on behalf of the Court of Appeal, stated the following (at pp. 411-12):

A number of cases establish the principle that solicitor-client privilege extends both to communications between the agents of a client and his solicitor and to communications between a client and agents of the solicitor. In Wheeler v. Le Marchant (1881), 17 Ch. D. 675 at p. 682, Jessel, M.R., said:

The actual communication to the solicitor by the client is of course protected, and it is equally protected whether it is made by the client in person or is

[page 879]

made by an agent on behalf of the client, and whether it is made to the solicitor in person or to a clerk or subordinate of the solicitor who acts in his place and under his direction.

In Lyell v. Kennedy (1884), 27 Ch. D. 1, Cotton, L.J., said at p. 19:

But then this privilege is confined to that which is communicated to or by that man [the client] by or to the solicitors or their agents, or any persons who can be treated properly as agents of the solicitors. We have therefore thought it right, in order to prevent an evasion of what is the proper view of the law by the use of that word 'agents,' to require that the Defendant shall put in a further affidavit stating whether the agents mentioned were his agents, or whether they were the agents of the solicitors and persons so employed by the solicitor as to be his agents, including such agents as every solicitor's clerk may be said to be, who would all be entitled to the protection given to solicitors. Subject, then, to that alteration, we think that the protection claimed is in law good.

In R. v. Chaney (1908), 1908 CanLII 227 (MB CA), 13 C.C.C. 289, 17 Man. R. 467 (Man. C.A.), police had a person falsely pose as a representative of the accused's solicitor in order to obtain a statement from the accused. The Court held that the person obtaining the statement must be treated as though he was the solicitor's agent as he represented himself to be, and that the evidence was therefore inadmissible on the ground of privilege.

Recent Canadian cases also holding that solicitor-client privilege extends to communications through the intermediary of an agent are Susan Hosiery Ltd. v. Minister of National Revenue, 1969 CanLII 1540 (CA EXC), [1969] 2 Ex. C.R. 27, [1969] C.T.C. 353, and Re Alcan-Colony Contracting Ltd. et al. and Minister of National Revenue (1971), 1971 CanLII 405 (ON SC), 18 D.L.R. (3d) 32, [1971] 2 O.R. 365.

It is not a factor against the existence of privilege that the communication between the respondent and the Legal Aid officer which is sought to be introduced in evidence related to the respondent's effort to obtain counsel rather than to advice given for the purpose of the actual defence. In Wheeler v. Le Marchant, supra, Jessel, M.R., said at p. 682:

So again, a communication with a solicitor for the purpose of obtaining legal advice is protected though it relates to a dealing which is not the subject of litigation, provided it be a communication made to the

[page 880]

solicitor in that character and for the purpose.[5]

This principle has been stated earlier in broader terms in Minet v. Morgan (1873), 8 Ch. App. 361, by Lord Selbourne, L.C., at p. 368:

But there is a later authority by that most accurate and learned Judge, Sir R. T. Kindersley-Lawrence v. Campbell, 4 Drew. 485, 490 [62 E.R. 186 at 188], which contains a statement of the Vice-Chancellor's view of the principle and also of the rule which in 1859 had come to be well settled and established in this Court on the foundation of that principle. He says: 'It is not now necessary, as it formerly was, for the purpose of obtaining production that the communications should be made either during or relating to an actual or even to an expected litigation. It is sufficient if they pass as professional communications in a professional capacity.' I can only say that I entirely agree with the views both of the principle and of its proper extension taken in these later authorities.

It is also clear that solicitor-client privilege can extend to conversations in which a person makes disclosures while seeking to retain a solicitor, though in fact the retainer is not perfected. In Minter v, Priest, [1930] A.C. 558 at p. 573, Viscount Dunedin said:

Now, if a man goes to a solicitor, as a solicitor, to consult and does consult him, though the end of the interview may lead to the conclusion that he does not engage him as his solicitor or expect that he should act as his solicitor, nevertheless the interview is held as a privileged occasion.

It follows from the authorities referred to above that conversations with a solicitor's agents held for the purpose of retaining him would also be privileged, even though the solicitor was not then, or ever, retained. In my view, the principle protects from disclosure a conversation between an applicant for legal aid and the non-lawyer official of the Legal Aid Society who interviews him to see if he is qualified.

The privilege protecting from disclosure communications between solicitor and client is a fundamental right—as fundamental as the right to counsel itself since the right can exist only imperfectly without the privilege. The Courts should be astute to protect both. As long ago as Pearson v. Foster (1885), 15 Q.B.D. 114,

[page 881]

Brett, M.R., warned that free and confident communication within the solicitor-client relationship is so vital a part of the right to counsel that the privilege ought not to be 'frittered away'. At pp. 119-20 he said:

The privilege with regard to confidential communications between solicitor and client for professional purposes ought to be preserved, and not frittered away. The reason of the privilege is that there may be that free and confident communication between solicitor and client which lies at the foundation of the use and service of the solicitor to the client ...

(Emphasis added.)

I am fully in agreement with the conclusions of the Alberta Court of Appeal. It is only fair to mention, in passing, that the judgment of the Superior Court judge in the case at bar was rendered prior to that decision.

Confidential communications, whether they relate to financial means or to the legal problem itself, lose that character if and to the extent that they were made for the purpose of obtaining legal advice to facilitate the commission of a crime.

The same is true a fortiori where, as in the case at bar, the communication itself is the material element (actus reus) of the crime; this is all the more evident where the victim of the crime is precisely the office of the lawyer to whom the communication was made.

This exception has been recognized for a very long time. The case most frequently referred to is R. v. Cox and Railton (1884), 14 Q.B.D. 153, where Stephen J. stated (at p. 167):

The reason on which the rule is said to rest cannot include the case of communications, criminal in themselves, or intended to further any criminal purpose, for the protection of such communications cannot possibly be otherwise than injurious to the interests of justice, and to those of the administration of justice. Nor do such communications fall within the terms of the rule. A communication in furtherance of a criminal purpose does not 'come into the ordinary scope of professional employment.'

(Emphasis added.)

In the case at bar, the communications dealing with Marcellin Ledoux's financial means are, according to the search warrant, "criminal in

[page 882]

themselves", to use Stephen J.'s words, and will not benefit as such from the protection they would otherwise have been afforded by the substantive rule and the rule of evidence, had they been confidential.

THE SEARCH WARRANT PROVIDED FOR IN S. 443(1)(b) OF THE CRIMINAL CODE AND THE RIGHT TO CONFIDENTIALITY

I do not intend to examine all the questions raised by the interpretation of s. 443 and the determination of the duties and powers it confers on the justice of the peace. Nor is it necessary for the purposes of this appeal that we consider the things that can be searched for and seized under s. 443(1)(a) or (c). It is sufficient for the purposes of this appeal to make certain general observations, that suggests a mere reading of s. 443(1)(b).

We know that, save certain exceptions, one cannot go into someone else's house without a warrant, even in order to search for evidence of a crime, Section 443 permits such entry on certain conditions, but subjects such an activity to a certain degree of judicial control. It provides that the person designated by the justice in the warrant may search the premises for the things described in the warrant and, if they are found, seize them and carry them before the justice. The only restriction on the type of things the search for and seizure of which a justice of the peace may authorize by warrant is that they be one of the things described in paras. (a), (b) and (c) of s. 443(1):

443. (1) A justice who is satisfied by information upon oath in Form 1, that there is reasonable ground to believe that there is in a building, receptacle or place

(a) anything upon or in respect of which any offence against this Act has been or is suspected to have been committed,

(b) anything that there is reasonable ground to believe will afford evidence with respect to the commission of an offence against this Act, or

(c) anything that there is reasonable ground to believe is intended to be used for the purpose of committing any offence against the person for which a person may be arrested without warrant,

may at any time issue a warrant under his hand authorizing a person named therein or a peace officer to search

[page 883]

the building, receptacle or place for any such thing, and to seize and carry it before the justice who issued the warrant or some other justice for the same territorial division to be dealt with by him according to law.

In the case at bar we are thus concerned with something provided for in para. (b), that is, something that is likely to "afford evidence with respect to the commission of an offence" in a legal proceeding.

Moreover, the legislation does not make any distinction with respect to the nature of the premises sought to be searched. One may therefore search anywhere for what is provided for under para. (b) of the section, including in a lawyer's offices.

Indeed the jurisdiction of a justice of the peace to authorize a search thus does not depend on the nature of the place sought to be searched but on a reasonable belief that there are to be found on the premises things covered by para. (b) of s. 443(1).

It then becomes necessary to reconcile the authority to search, a right that society has assumed as being essential to the suppression of crime, with the right to confidentiality, a right that society recognizes as essential for the better administration of justice.

The right to confidentiality enjoyed by a lawyer's client does not, by virtue of the substantive rule, interfere with the jurisdiction of the justice of the peace to authorize the search, but might do so by virtue of the rule of evidence. At the very most, in the present state of the law, the substantive rule requires that a justice of the peace be more demanding before authorizing a search of a lawyer's office or one of his files and will lead him, where necessary, to set out special procedures for the execution of the warrant in order to limit to what is absolutely inevitable the breach of confidentiality.

This leads us to a consideration of the effect of the right to confidentiality on searches, first as a rule of evidence and then as a substantive rule. The rule of evidence affects the jurisdiction of the

[page 884]

justice of the peace, while the substantive rule affects how he exercises it.

(a) As a rule of evidence

Some courts have been unwilling to recognize that a justice of the peace has the right to refuse a search warrant on the sole ground that what is sought to be seized could never subsequently be received in evidence because it is protected by solicitor-client privilege. (See R. v. Colvin, Ex parte Merrick et al. (1970), 1970 CanLII 266 (ON SC), 1 C.C.C. (2d) 8; Re B.X. Development Ltd. and The Queen (1976), 36 C.R.N.S. 313 (B.C. S.C.); Re Alder et al. and The Queen (1977), 1977 CanLII 2098 (AB SCTD), 37 C.C.C. (2d) 234; Attorney General of Quebec v. T., G., W., R. and C. (1977), 1977 CanLII 3355 (QC CQ), 2 C.R. (3d) 30).

Others have ruled that he has such a right, either at the time the warrant is being issued (Re Director of Investigation and Research and Canada Safeway Ltd. (1972), 1972 CanLII 1028 (BC SC), 26 D.L.R. (3d) 745; Re Director of Investigation and Research and Shell Canada Ltd. (1975), 1975 CanLII 2217 (FCA), 22 C.C.C. (2d) 70; Re Borden & Elliott and The Queen (1975), 1975 CanLII 739 (ON CA), 30 C.C.C. (2d) 337 (Ont. S.C.); Re Presswood and Delzotto (1975), 1975 CanLII 367 (ON SC), 36 C.R.N.S. 322; Re B.X. Development and The Queen (1976), 1976 CanLII 1084 (BC CA), 31 C.C.C. (2d) 14 (B.C. C.A.)), or at the time of an application under s. 446(3) to have the things seized returned (Re Steel and The Queen (1974), 1974 CanLII 897 (ON CJ), 21 C.C.C. (2d) 278; Re B and The Queen (1977), 1977 CanLII 2032 (ON CJ), 36 C.C.C. (2d) 235).

It is not necessary to review all the decisions to the effect that the justice of the peace can do this at the time the warrant is being issued. It is sufficient, in my view, to quote here in this connection what was said by Southey J. of the Supreme Court of Ontario at trial in Re Borden & Elliott and The Queen (1975), 1975 CanLII 739 (ON CA), 30 C.C.C. (2d) 337, since I agree with his critical analysis of these decisions and his conclusions (the Ontario Court of Appeal, hearing an appeal in that case, chose not to rule on the question and the appeal was decided on another ground). Southey J. stated the following (at pp. 341-43):

The first question to be decided is whether a search warrant issued under s. 443 of the Criminal Code

[page 885]

overrides the solicitor-and-client privilege and can be used to give authority to a peace officer to search for and seize documents which are subject to that privilege. The relevant provisions of s. 443 reads [sic] as follows:

443(1) A justice who is satisfied by information upon oath in Form 1, that there is reasonable ground to believe that there is in a building, receptacle or place

(b) anything that there is reasonable ground to believe will afford evidence with respect to the commission of an offence against this Act, or

may at any time issue a warrant under his hand authorizing a person named therein or a peace officer to search the building, receptacle or place for any such thing, and to seize and carry it before the justice who issued the warrant or some other justice for the same territorial division to be dealt with by him according to law.

The position of the applicants is that a Justice has no jurisdiction to issue a warrant with respect to documents subject to the solicitor-and-client privilege, because the issuance of warrants is limited under s. 443 to documents which the Justice has reasonable grounds to believe will afford evidence of the offence charged. As documents covered by the solicitor-and-client privilege would not be admissible at trial, the Justice could not believe that such documents would afford evidence of the offence. This was the basis of the decision of Judge Rice in the Provincial Court (Criminal Division) in Re Steel and The Queen (1974), 1974 CanLII 897 (ON CJ), 21 C.C.C. (2d) 278, 6 O.R. (2d) 644, 29 C.R.N.S. 355.

In R. v. Colvin, Ex p. Merrick et al. (1970), 1970 CanLII 266 (ON SC), 1 C.C.C. (2d) 8, [1970] 3 O.R. 612, Osier, J., quashed a search warrant on the ground that the Justice should not have been satisfied on the information that there were reasonable grounds for believing that there was in the building in question anything that would afford evidence with respect to the commission of an offence. He went on to state in obiter, however, that he would not be prepared to quash a warrant simply because the possibility existed that the material in question might be covered by the solicitor-and-client privilege, because that privilege is a rule of evidence and not a rule of property. It was his view that the privilege could only be asserted by way of

[page 886]

objection to the introduction of the allegedly privileged material in evidence at the appropriate time.

Almost five years after the decision of Osier, J., the Federal Court of Appeal held in Re Director of Investigation and Research and Shell Canada Ltd. (1975), 1975 CanLII 2217 (FCA), 22 C.C.C. (2d) 70, 55 D.L.R. (3d) 713, 18 C.P.R. (2d) 155, [[1975] F.C. 184], that the authority given to the Director of Investigation under s. 10 of the Combines Investigation Act to enter premises on which he believes evidence may be found relating to a matter under inquiry and to examine and copy documents that may afford such evidence, does not override the solicitor-and-client privilege.

Chief Justice Jackett, with whom the other members of the Court agreed, made the following statement at pp. 78-9 C.C.C., pp. 721-2 D.L.R. [p. 193 [1975] F.C.]:

... it has been recognized from very early times that the protection, civil and criminal, afforded to the individual by our law is dependent upon his having the aid and guidance of those skilled in the law untrammelled by any apprehension that the full and frank disclosure by him of all his facts and thoughts to his legal advisor might somehow become available to third persons so as to be used against him.

He then continued at p. 79 C.C.C., p. 722 D.L.R., [p. 194 F.C.]:

I fully realize that the protection of the confidentiality of the solicitor-and-client relationship has, heretofore, manifested itself mainly, if not entirely, in the privilege afforded to the client against the compulsory revelation of communications between solicitor and client in the giving of evidence in Court or in the judicial process of discovery. In my view, however, this privilege is a mere manifestation of a fundamental principle upon which our judicial system is based, which principle would be breached just as clearly, and with equal injury to our judicial system, by the compulsory form of preprosecution discovery envisaged by the Combines Investigation Act as it would be by evidence in Court or by judicial discovery.

Thurlow, J., added the following at p. 80 C.C.C., p. 723 D.L.R., [p. 195 [1975] F.C.]:

Secondly, it appears to me that the confidential character of such communications, whether oral or in writing, comes into existence at the time when the communications are made. As the right to protection

[page 887]

for the confidence, commonly referred to as legal professional privilege, is not dependent on there being litigation in progress or even in contemplation at the time the communications take place, it seems to me that the right to have the communications protected must also arise at that time and be capable of being asserted on any later occasion when the confidence may be in jeopardy at the hands of anyone purporting to exercise the authority of the law.

The reasoning of Chief Justice Jackett and Thurlow, J., in the case of an inquiry under the Combines Investigation Act, R.S.C. 1970, c. C-23, is even more compelling, in my view, in the case of a search warrant issued by a Justice under s. 443 of the Criminal Code. If the privilege could not be invoked to prevent the seizure and examination of documents under a search warrant, the Crown would be free in any case to seize and examine the files and brief of defence counsel in a criminal prosecution. It would be small comfort indeed to the accused and to his counsel to discover that his only protection in such a case was to prevent the introduction into evidence of the documents that had been seized and examined. Such a result, in my view, would be absurd.

Chief Justice Jackett quoted extensively in his reasons from the decision of Munroe, J., of the British Columbia Supreme Court in Re Director of Investigation and Research and Canada Safeway Ltd. (1972), 1972 CanLII 1028 (BC SC), 26 D.L.R. (3d) 745, 6 C.P.R. (2d) 41, [1972] 3 W.W.R. 547, in which the same result was reached. That decision, in my view, contains further persuasive reasons for upholding the position taken by the applicants that the solicitor-and-client privilege may be invoked to prevent seizure under a search warrant.

I find, accordingly, that the applicant is entitled to raise the solicitor-and-client privilege at this stage in the proceeding, as a ground for quashing the search warrant for lack of jurisdiction on the part of the Justice.

I am of this view and would add, by way of clarification, that the justice of the peace should raise the question himself and, where necessary, find that he has no jurisdiction to authorize the search.

(b) As a substantive rule

In cases where the justice of the peace has the necessary jurisdiction to authorize the search, he should, in exercising that jurisdiction, take into

[page 888]

account the need to protect the fundamental right of a lawyer's client to have his communications kept confidential. This may arise where evidence is being sought of communications which, although made in confidence to a lawyer, are no longer protected because they were made in circumstances such that they fall within an exception to the rule; or where a lawyer's office is to be searched for things covered by para. (a) or (c) of s. 443(1) (for example, stolen goods). Although the rule of evidence seems to be applicable only with respect to para. (b) of s. 443(1), the substantive rule will apply to any search affecting the right to confidentiality, regardless of which of the paragraphs of s. 443(1) such search is to be made under. In either case the search should be limited to what is absolutely necessary in order to seize the things for which the search was authorized. A lawyer's file may contain a host of information concerning a client, some of which has remained confidential even though other information is no longer so since it falls within an exception to the rule. Even more serious is the fact that a lawyer's office contains confidential files pertaining to other clients which have nothing to do with the crime that is to be proved or with the things searched for under s. 443(1)(a) and (c).

Some would say that the justice of the peace has no discretion to refuse to issue a search warrant or to impose terms of execution once the requirements of form and substance in s. 443 have been met. They would argue that in s. 443 the word "may" means "must" and does not confer any discretion. According to this interpretation, the justice of the peace may issue a warrant only if he is satisfied that there is reasonable ground to believe that one of the things provided for in s. 443(1) is to be found in the place sought to be searched, but must do so as soon as he is so satisfied, and the only condition of execution on the premises that he may impose is set out in s. 444 of the Code:

444. A warrant issued under section 443 shall be executed by day, unless the justice, by the warrant, authorizes execution of it by night.

[page 889]

Others, on the contrary, would say that generally the justice of the peace has the discretion to refuse the warrant, so long as this discretion is exercised judicially and so long as the decision to refuse the warrant is not capricious or arbitrary (Carter, R.F., The Law Relating to Search Warrants, 1939, at p. 52; Fontana, J.A., The Law of Search Warrants in Canada, 1974, at pp. 7 and 51 et seq.; Re Pacific Press Ltd. and The Queen et al. (1977), 1977 CanLII 1922 (BC SC), 37 C.C.C. (2d) 487).

I come down on the side of the discretion, as it allows more effective judicial control of the police. Searches are an exception to the oldest and most fundamental principles of the common law, and as such the power to search should be strictly controlled. It goes without saying that the justice may sometimes be in a poor position to assess the need for the search in advance. After all, searches, while constituting a means of gathering evidence, are also an investigative tool. It will often be difficult to determine definitively the probative value of a particular thing before the police investigation has been completed. Be that as it may, there are places for which authorization to search should generally be granted only with reticence and, where necessary, with more conditions attached than for other places. One does not enter a church in the same way as a lion's den, or a warehouse in the same way as a lawyer's office. One does not search the premises of a third party who is not alleged to have participated in the commission of a crime in the same way as those of someone who is the subject of such an allegation. (See on this subject Fontana, J.A., The Law of Search Warrants in Canada, at p. 174.)

The justice of the peace, in my view, has the authority, where circumstances warrant, to set out execution procedures in the search warrant; I would even go so far as to say that he has the right to refuse to issue the warrant in special circumstances, such as those found in Re Pacific Press Ltd. and The Queen et al., supra.

That case involved a search of a newspaper office for information gathered by the newspaper staff. Neither the newspaper staff nor the newspaper itself were accused of having been involved in the commission of an offence. In view of the

[page 890]

special situation of a newspaper in light of ss. 1(f) and 2 of the Canadian Bill of Rights, R.S.C. 1970, Appendix III, Nemetz C.J. of the British Columbia Supreme Court quashed the search warrant issued by the justice of the peace, concluding as follows (at p. 495):

The issuing of any search warrant is a serious matter, especially when its issuance against a newspaper may have, as it did, the effect of impeding its publication. To use the words of my distinguished predecessor in United Distillers Ltd. (1948), 1946 CanLII 277 (BC SC), 88 C.C.C. 338, [1947] 3 D.L.R. 900, the Justice of the Peace 'should have reasonable information before him to entitle him to judicially decide whether such warrant should issue or not'. In my opinion, no such reasonable information was before him since there was no material to show:

1. whether a reasonable alternative source of obtaining

2. the information was or was not available, and if available, that reasonable steps had been taken to obtain it from that alternative source.

In my opinion, the bringing of an application for a search warrant in these circumstances was an abuse of the process of the Court. I, therefore, quash the warrants.

Re Pacific Press Ltd. involved a search for things provided for in para. (b) of s. 443(1), that is, evidence; it goes without saying that the same requirements do not apply in the case of things provided for in paras. (a) and (c) of s. 443(1).

It could be advanced that the two conditions set out by Nemetz C.J. should be met before a warrant is issued whenever a search is sought to be conducted, under 443(1)(6), of premises occupied by an innocent third party which are not alleged by the information to be connected in any way with the crime. It is not necessary for purposes of this appeal to decide that point. It is sufficient to say that in situations such as the one in Re Pacific Press Ltd., where the search would interfere with rights as fundamental as freedom of the press, and, as in the case at bar, a lawyer's client's right to

[page 891]

confidentiality, the justice of the peace may and should refuse to issue the warrant if these two conditions have not been met, lest he exceeds the jurisdiction he had ab initio. I would add one qualification to these two conditions. The reasonable alternative referred to is not an alternative to the method of proof but to the benefits of search and seizure of the evidence. As I have already stated, a search warrant is not only a means of gathering evidence but also an investigative tool. Therefore a determination of what is reasonable in each case will take into account the fact that a search makes it possible not only to seize evidence but also to ascertain that it exists, and even sometimes that the crime was in fact committed and by whom. Seizure makes it possible to preserve the evidence.

Moreover, even if the conditions are met, the justice of the peace must set out procedures for the execution of the warrant that reconcile protection of the interests this right is seeking to promote with protection of those the search power is seeking to promote, and limit the breach of this fundamental right to what is strictly inevitable. This is also true of searches under 443(1)(a) or (c), as soon as they threaten a fundamental right.

Generally speaking, where the search is to be made of a lawyer's office, in order to search for things provided for under para. (a), (b) or (c) of s. 443(1), the justice of the peace should be particularly demanding. Where it is a question of evidence (443(1)(b)), although satisfied that there is such evidence on the premises, he should only allow a lawyer's office to be searched if in addition he is satisfied that there is no reasonable alternative to a search. It will sometimes be desirable, as soon as the informant initiates proceedings, for the justice of the peace to see that the district Crown attorney is notified, if he is not aware of such proceedings, as well as the Bar authorities. With their assistance he should normally be more easily able to decide with the police on search procedures acceptable to everyone that respect the law firm's clients' right to confidentiality without depriving the police of their right to search for evidence of the alleged crime.

[page 892]

In this respect he could take guidance from the provisions of the Income Tax Act, 1970-71-72 (Can.), c. 63, s. 232, adapting them to fit the particular case, of course.

Moreover, the search should be made in the presence of a representative of the Bar, where possible.

It is encouraging to read the numerous cases reported in the law reports and see that in almost all cases it was possible to decide upon appropriate execution procedures with the consent of the various parties involved (police, Bar, etc.), without the case law having at the time definitively decided that the justice of the peace had the authority to impose any. This seems to me to have been done in the case at bar, since, although the record is not very clear as to the reasons, it is apparent that the search was conducted in a special manner, with the cooperation of the police and the Bar, and that the documents seized were placed in a sealed envelope without having been examined.

Some have expressed the view that Parliament rather than the courts should set guidelines for searching lawyers' offices. (See the statements of the Ontario Court of Appeal in Re Borden & Elliott and The Queen (1975), 1975 CanLII 739 (ON CA), 30 C.C.C. (2d) 337, at p. 348.) Be that as it may, I for my part hope that the courts in the provinces, in view of the discretion of the justices of the peace and the willingness of everyone so far to recognize the importance of the confidentiality of communications made to a lawyer by his client, and their willingness and the need to preserve it, will rectify this legislative gap by developing, through rules of court or informally, by means of a uniform practice, a regional procedure that will take account of local circumstances; they are certainly in an eminently better position to do so than this Court.

CONCLUSION

In summary, a lawyer's client is entitled to have all communications made with a view to obtaining legal advice kept confidential. Whether communications

[page 893]

are made to the lawyer himself or to employees, and whether they deal with matters of an administrative nature such as financial means or with the actual nature of the legal problem, all information which a person must provide in order to obtain legal advice and which is given in confidence for that purpose enjoys the privileges attached to confidentiality. This confidentiality attaches to all communications made within the framework of the solicitor-client relationship, which arises as soon as the potential client takes the first steps, and consequently even before the formal retainer is established.

There are certain exceptions to the principle of the confidentiality of solicitor-client communications, however. Thus communications that are in themselves criminal or that are made with a view to obtaining legal advice to facilitate the commission of a crime will not be privileged, inter alia.

The fundamental right to communicate with one's legal adviser in confidence has given rise to a rule of evidence and a substantive rule. Whether through the rule of evidence or the substantive rule, the client's right to have his communications to his lawyer kept confidential will have an effect when the search warrant provided for in s. 443 Cr. C. is being issued and executed.

Thus the justice of the peace has no jurisdiction to order the seizure of documents that would not be admissible in evidence in court on the ground that they are privileged (the rule of evidence).

Before authorizing a search of a lawyer's office for evidence of a crime, the justice of the peace should refuse to issue the warrant unless he is satisfied that there is no reasonable alternative to the search, or he will be exceeding his jurisdiction (the substantive rule). When issuing the warrant, to search for evidence or other things, he 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.

[page 894]

Applying these principles to the case at bar, I have arrived at the following conclusions.

First, all information contained in the form that applicants for legal aid must fill out is provided for the purpose of obtaining legal advice, is given in confidence for that purpose and, consequently, is subject to the applicant's fundamental right to have such communications kept confidential and, as such, is protected by the rule of evidence and the substantive rule.

It is alleged in the information laid that the communications made by Ledoux with respect to his financial means are criminal in themselves since they constitute the material element of the crime charged. This is an exception to the principle of confidentiality and these communications are accordingly not protected (this does not mean that we are expressing an opinion as to the validity of the allegations in the information). However, since the allegation concerns only the information dealing with the applicant's financial means, all other information on the form remains confidential.

Since the part of the form dealing with Ledoux's financial situation was as an exception admissible in evidence, the justice of the peace had jurisdiction to order its seizure.

Acting within his jurisdiction with regard to the rule of evidence, the justice of the peace also exercised his discretion to issue a warrant judicially having regard to the substantive rule. As a result of the refusal of the legal aid bureau's staff and lawyers to disclose to the investigators the contents of the form, or of the oral statements made to them by Ledoux concerning his financial situation, there was no reasonable alternative to a search. How otherwise could the investigators ascertain that Ledoux's statements were fraudulent? Perhaps, as a result of their investigation, they knew that Ledoux was not eligible for legal aid in view of his financial means, but the crime of which they suspected him and concerning which they were entitled to continue the investigation was that of having concealed his means, ineligibility not being a crime in itself.

[page 895]

I do not know whether the justice of the peace was the originator of the procedure followed for the search and seizure or whether there was an agreement between counsel. In any event, the manner of proceeding in the case at bar was, again having regard to the substantive rule, proper and acceptable and the justice of the peace was or would have been by law empowered to and justified in making it a condition of granting the warrant.

There is one problem, however. The form seized may contain privileged information. 1 am of the view that the justice of the peace could have, in the presence of everyone—the Crown, the representative of the Bar and the Legal Aid representative—opened the envelope and examined the form to determine whether it contained anything confidential and, if not, dealt with it in accordance with the law like any other thing seized. If he had discovered that the form contained confidential information, he could have (at least this is one of the ways of proceeding) photocopied the part relevant to the applicant's financial means and dealt with that portion of the form like any other thing seized by placing it on the file. He could have placed the original of the document in a sealed envelope also placed on file, ordering that it not be examined without a judge's order.

In the case at bar, if the information on the back of the form in fact consists of professional notes, as indicated by the form, they are confidential. This would still have to be verified, however. As for the front of the form, most of the information requested is relevant to the applicant's financial situation, although some only indirectly. This is not the case, however, with the information required on the parts of the form that I have identified with the letters A and B, where the information essentially concerns the "nature of the case" or the "probable existence of a right". I am therefore of the view that the judge, after verifying the back of the form, and if he ascertains that it contains professional notes, should have the front of the form, except parts A and B, photocopied, and deal with the photocopies and the original of the document as suggested, that is, place the photocopies on the Court file and place the original in a sealed

[page 896]

envelope, place the envelope on the file and order the Court staff not to open it or allow it to be opened without a judge's order. The sealed envelope will eventually be returned to the legal aid bureau, unless Marcellin Ledoux disputes the authenticity of the photocopy should an inquiry or trial be held; were Ledoux to do so, the judge presiding at the trial or the preliminary inquiry would be fully justified in opening the envelope and allowing those concerned to see the form, since Ledoux would then, in my view, have himself by his allegations made it impossible to reconcile his right to confidentiality for the better administration of criminal justice.

Before concluding, I should state that the procedure will vary from one case to another. Here the good faith of counsel was in no way at issue since, as alleged by the police, they were not accomplices of their client but rather his victims. Clearly different execution procedures should be provided for where the information laid alleges that the lawyer participated in the crime. I would also like to add that the justice of the peace from whom a warrant to search a lawyer's office is being sought, if he is not a judge by profession, would be well advised, although in no way obliged to do so, to refer the applicant to a judge of a court of criminal jurisdiction or even a judge of a superior court of criminal jurisdiction.

For these reasons I would dismiss this. appeal and refer the matter back to the justice of the peace, ordering him to deal with the envelope and its contents as stated above.

Appeal dismissed.

Solicitors for the appellants: Corbeil, Meloche, Larivière & Laberge, Montreal.

Solicitor for the respondent and for the intervener the Attorney General of the Province of Quebec: Pierre Robert, Montreal.

Solicitors for the intervener the Commission des services juridiques: Geoffrion, Prud'homme, Montreal.

• The syndic of the Bar, in the province of Quebec, is a full-time officer of the Bar whose duties are described at s. 75 of the Act respecting the Barreau du Québec, R.S.Q. 1977, c. B-1, which reads as follows:

75. (1) The syndic, of his own initiative or at the request of the General Council of the Executive Committee shall make an inquiry into the conduct of any member of the Bar.

(2) The syndic shall also make an inquiry respecting every person requesting admission or readmission to the Bar.

(3) The syndic shall deal with disputes between an advocate and any person and shall endeavour to reconcile them.

(4) The syndic shall ensure the inspection of the trust accounts prescribed by the by-laws.

[1] I have added the letters A and B for convenience of reference later in these reasons.

[2] I am dealing here generally with the effects of the right to confidentiality. In its present state, the rule of evidence, which 1 shall discuss later, would not prohibit a third party from making such a disclosure (see 8 Wigmore, Evidence, at pp. 633 and 634 — McNaughton rev. 1961).

[3] 131. (1) An advocate must keep absolutely secret the confidences made to him by reason of his profession.

(2) Such obligation, however, shall not apply when the advocate is expressly or implicitly relieved therefrom by the person who made such confidences to him.

[4] 9. Every person has a right to non-disclosure of confidential information.

No person bound to professional secrecy by law and no priest or other minister of religion may, even in judicial proceedings, disclose confidential information revealed to him by reason of his position or profession, unless he is authorized to do so by the person who confided such information to him or by an express provision of law.

The tribunal must, ex officio, ensure that professional secrecy is respected.

[5] This decision, like the following one, does not seem to me to support Laycraft J.'s conclusion directly in its entirety. I am nonetheless in agreement with that conclusion.