Lavallee, Rackel & Heintz v. Canada (Attorney General); White, Ottenheimer & Baker v. Canada (Attorney General); R. v. Fink, [2002] 3 S.C.R. 209, 2002 SCC 61

Her Majesty The Queen Appellant

Lavallee, Rackel & Heintz, Barristers and Solicitors, and Andrew Brent Polo Respondents

and

The Attorney General for Ontario, the Attorney General of Quebec, the Attorney General for Alberta, the Law Society of Alberta and the Federation of Law Societies of Canada Interveners

and between

White, Ottenheimer & Baker Appellants/Respondents on cross-appeal

The Attorney General of Canada Respondent/Appellant on cross-appeal

and

The Attorney General for Ontario, the Attorney General of Quebec, the Attorney General for Alberta and the Federation of Law Societies of Canada Interveners

and between

Her Majesty The Queen Appellant

Jeffrey Fink Respondent

and

The Attorney General of Canada, the Attorney General of Quebec, the Attorney General for Alberta and the Canadian Bar Association Interveners

Indexed as: Lavallee, Rackel & Heintz v. Canada (Attorney General); White, Ottenheimer & Baker v. Canada (Attorney General); R. v. Fink

Neutral citation: 2002 SCC 61.

File Nos.: 27852, 28144, 28385.

2001: December 13; 2002: September 12.

Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ALBERTA

ON APPEAL FROM THE COURT OF APPEAL FOR NEWFOUNDLAND

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO

Constitutional law — Charter of Rights — Unreasonable search or seizure — Police seizing documents from law offices under warrants — Criminal Code procedure to protect solicitor-client privilege followed — Whether procedure infringes right against unreasonable search or seizure — If so, whether infringement justifiable — Canadian Charter of Rights and Freedoms, ss. 1, 8 — Criminal Code, R.S.C. 1985, c. C-46, s. 488.1.

Criminal law — Procedure — Solicitor-client privilege — Police seizing documents from law offices under warrants — Criminal Code procedure to protect solicitor-client privilege followed — Whether procedure infringes right against unreasonable search or seizure — If so, whether infringement justifiable — Canadian Charter of Rights and Freedoms, ss. 1, 8 — Criminal Code, R.S.C. 1985, c. C-46, s. 488.1.

These appeals bring into question whether s. 488.1 of the Criminal Code, which sets out a procedure for determining a claim of solicitor‑client privilege in relation to documents seized from a law office under a warrant, infringes s. 8 of the Canadian Charter of Rights and Freedoms and, if so, whether the infringement is justified under s. 1. This procedure mandates that the material be sealed at the time of the search, that the solicitor make application within strict time lines for a determination that the material is indeed protected by privilege, and that, with the permission of the court, the Crown may be permitted to examine the material in order to assist in a determination on the issue of the existence of privilege.

The issue is brought before the Court by way of three separate appeals from the provinces of Alberta (Lavallee, Rackel & Heintz v. Canada (Attorney General)), Newfoundland and Labrador (White, Ottenheimer & Baker v. Canada (Attorney General)) and Ontario (R. v. Fink). In all three cases, materials were seized by the police from law offices pursuant to warrants, the procedures prescribed by s. 488.1 for the protection of materials possibly protected by solicitor-client privilege were followed and claims of solicitor‑client privilege were made by the law firms on their clients’ behalf. In Lavallee, a motion to quash the warrant on constitutional grounds was dismissed but the Court of Queen’s Bench struck down s. 488.1 as unconstitutional and the Court of Appeal affirmed that decision. In White, the Supreme Court of Newfoundland dismissed an application for a declaration that s. 488.1 of the Code and s. 232 of the Income Tax Act were contrary to s. 8 of the Charter. The Court of Appeal allowed the appeal in part, resorting to the remedial techniques of severance and reading-in to salvage the impugned section of the Code. In Fink, an application for an order declaring s. 488.1 of the Code to be inconsistent with s. 8 of the Charter was dismissed by the Superior Court of Justice but that decision was reversed by the Court of Appeal.

Held (L’Heureux-Dubé, Gonthier and LeBel JJ. dissenting in part): The appeal in Lavallee should be dismissed. The appeal in White should be allowed and the cross-appeal dismissed. The appeal in Fink should be dismissed. Section 488.1 of the Criminal Code is unconstitutional.

Per McLachlin C.J. and Iacobucci, Major, Bastarache, Binnie and Arbour JJ.: Since s. 8 of the Charter only protects against unreasonable searches and seizures, the issue is whether the procedure set out by s. 488.1 results in a reasonable search and seizure of potentially privileged documents in the possession of a lawyer. Section 488.1 permits solicitor-client privilege to fall through the interstices of its inadequate procedure. This possible automatic loss of solicitor-client privilege through the normal operation of the law is not reasonable.

Where the interest at stake is solicitor-client privilege, which is a principle of fundamental justice and a civil right of supreme importance in Canadian law, the usual exercise of balancing privacy interests and the exigencies of law enforcement is not particularly helpful because the privilege is a positive feature of law enforcement, not an impediment to it. Given that solicitor-client privilege must remain as close to absolute as possible to retain its relevance, the Court must adopt stringent norms to ensure its protection. The procedure set out in s. 488.1 must minimally impair solicitor-client privilege to pass Charter scrutiny.

Section 488.1 more than minimally impairs solicitor-client privilege and amounts to an unreasonable search and seizure contrary to s. 8 of the Charter. Its constitutional failings can result from: (1) the absence or inaction of the solicitor; (2) the naming of clients; (3) the fact that notice is not given to the client; (4) its strict time limits; (5) an absence of discretion on the part of the judge determining the existence of solicitor-client privilege; and (6) the possibility of the Attorney General’s access prior to that judicial determination. The one principal, fatal feature shared by them is the potential breach of solicitor-client privilege without the client’s knowledge, let alone consent. The fact that competent counsel will attempt to ascertain the whereabouts of their clients and will likely assert blanket privilege at the outset does not obviate the state’s duty to ensure sufficient protection of the rights of the privilege holder. Privilege does not come into being by an assertion of a privilege claim; it exists independently. Section 488.1 provides that reasonable opportunity to ensure that the privileged information remains so must be given to the privilege keeper, but not to the privilege holder. It cannot be assumed that the lawyer is the alter ego of the client. Section 488.1(8), which provides that no examination may be carried out without affording a reasonable opportunity for a claim of solicitor-client privilege to be made, cannot raise this entire procedural scheme to a standard of constitutional reasonableness given this failure to address directly the client’s entitlement to ensure the adequate protection of his or her rights.

The absence of judicial discretion in the determination of the validity of an asserted claim of privilege is the second fatal flaw in the statutory scheme. A residual discretion cannot be read in s. 488.1(6), which confers an entitlement on the Crown to access the seized documents if an application has not been made, or has not been proceeded with, within the time limits imposed by subss. (2) and (3). This mandatory disclosure of potentially privileged information, in a case where the court has been alerted to the possibility of privilege by the fact that the documents were sealed at the point of search, cannot be said to impair the privilege minimally. Reasonableness dictates that courts must retain a discretion to decide whether materials seized in a lawyer’s office should remain inaccessible to the State as privileged information if and when, in the circumstances, it is in the interest of justice to do so.

The provision in s. 488.1(4)(b) which permits the Attorney General to inspect the seized documents where the applications judge is of the opinion that it would materially assist him or her in deciding whether the document is privileged is also an unjustifiable impairment of the privilege. Granting the Crown access to confidential solicitor‑client communications would diminish the public’s faith in the administration of justice and create a potential for abuse. This provision is unduly intrusive upon the privilege and of limited usefulness in determining its existence.

Section 488.1 cannot be infused with reasonableness, in a constitutional sense, on the basis of an assumption that the prosecution will behave honourably. Nor can it be saved by s. 1: while effective police investigations are a pressing and substantive concern, s. 488.1 does not establish proportional means to achieve that objective. The provision should be struck down. The process for seizing documents in the possession of a lawyer is a delicate matter which presents some procedural options that are best left to Parliament.

The following guidelines reflect present-day constitutional imperatives for the protection of solicitor‑client privilege and apply to law office searches until new legislation is in place. (1) A search warrant should not issue for documents known to be protected by solicitor‑client privilege. (2) As well, they should not issue if other reasonable alternatives to the law office search exist. (3) The issuing justice must be rigorously demanding with respect to solicitor-client privilege. (4) Unless otherwise authorized by the warrant, all documents in a lawyer’s possession must be sealed before being examined or seized. (5) Every effort must be made to contact the lawyer and the client when the search warrant is executed and, where the lawyer or the client cannot be contacted, a representative of the Bar should oversee the sealing and seizure of documents. (6) The investigating officer executing the warrant should report the efforts made to contact all potential privilege holders to the justice of the peace. These privilege holders should then be given a reasonable opportunity to assert a claim of privilege and, if that claim is contested, to have the issue judicially decided. (7) If notification of potential privilege holders is not possible, the lawyer who had custody of the documents seized, or another lawyer appointed either by the Law Society or by the court, should examine the documents to determine whether a claim of privilege should be asserted, and should be given a reasonable opportunity to do so. (8) The Attorney General may make submissions on the issue of privilege but should not be permitted to inspect the documents beforehand, and the prosecuting authority can only inspect the documents if and when it is determined by a judge that the documents are not privileged. (9) Where sealed documents are found not to be privileged, they may be used in the normal course of the investigation. (10) Where documents are found to be privileged, they are to be returned immediately to the holder of the privilege, or to a person designated by the court.

Per L’Heureux‑Dubé, Gonthier and LeBel JJ. (dissenting in part): Section 488.1 of the Criminal Code does not infringe either s. 7 or s. 8 of the Charter, with the exception of s. 488.1(4), which may lead to improper and premature disclosures of confidential information and therefore violates s. 8. It aims at protecting privilege, not destroying it, and builds on jurisprudential and legislative rules governing the issuance of search warrants. The procedure includes a number of safeguards which require a proper understanding of the role of counsel in the implementation of the provisions at issue. Lawyers have obligations flowing from their rights and privileges. As long as society and courts can assume that lawyers will behave in a competent and ethical manner, s. 488.1 grants adequate protection to professional privilege and to the interests of the clients of law firms.

While the provision’s 14‑day time limit is short, this brevity does not render it unconstitutional. The short time limit does not appear to have been designed as a trap for overworked or careless lawyers, but as a procedural constraint designed to speed things up and move them to a quick disposition. Although s. 488.1 does not explicitly grant the power to extend the time limit, the trend of jurisprudential developments in respect of time limits and limitation periods has been to acknowledge the existence of a broad judicial power to grant relief or extend time limits. A showing of inability or impossibility to act within the stated time has been found sufficient to grant an extension or other appropriate relief. Since the identity and whereabouts of a client are sometimes better known to lawyers, the failure to include a requirement of notice to the client does not amount to a flaw.

A requirement that the lawyer identify the client by name would breach the privilege. Naming, however, does not necessarily amount to identifying by name for the name used need not be the true or full name of an individual. The impugned provision seeks to avoid broad claims of privilege. At a subsequent stage of the proceedings, the question of the confidentiality of names and the measures necessary to protect it would fall to be decided by the court.

Cases Cited

By Arbour J.

Applied: Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860; considered: Festing v. Canada (Attorney General) (2001), 2001 BCCA 612; R. v. Colvin, Ex parte Merrick (1970), 1 C.C.C. (2d) 8; Re Presswood and International Chemalloy Corp. (1975), 11 O.R. (2d) 164; Re Shell Canada Ltd., [1975] F.C. 184; Re Borden & Elliot and The Queen (1975), 30 C.C.C. (2d) 337; Re B.X. Development Inc. and The Queen (1976), 31 C.C.C. (2d) 14; Solosky v. The Queen, [1980] 1 S.C.R. 821; referred to: R. v. Claus (2000), 149 C.C.C. (3d) 336; R. v. Piersanti & Co., [2001] G.S.T.C. 3; Canada (Attorney General) v. Several Clients and Several Solicitors (2000), 189 N.S.R. (2d) 313; Geffen v. Goodman Estate, [1991] 2 S.C.R. 353; Smith v. Jones, [1999] 1 S.C.R. 455; R. v. McClure, [2001] 1 S.C.R. 445, 2001 SCC 14; R. v. Brown, [2002] 2 S.C.R. 185, 2002 SCC 32; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Thorson v. Jones (1973), 38 D.L.R. (3d) 312; Schachter v. Canada, [1992] 2 S.C.R. 679; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. Edwards, [1996] 1 S.C.R. 128; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Araujo, [2000] 2 S.C.R. 992, 2000 SCC 65; R. v. Golden, [2001] 3 S.C.R. 679, 2001 SCC 83; R. v. Mills, [1999] 3 S.C.R. 668; Maranda v. Québec (Juge de la Cour du Québec) (2001), 47 C.R. (5th) 162; R. v. Bain, [1992] 1 S.C.R. 91; Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, 2002 SCC 1; R. v. Heywood, [1994] 3 S.C.R. 761.

By LeBel J. (dissenting in part)

Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2; Vidéotron Ltée v. Industries Microlec Produits Électroniques Inc., [1992] 2 S.C.R. 1065; Symes v. Canada, [1993] 4 S.C.R. 695; Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860; R. v. Araujo, [2000] 2 S.C.R. 992, 2000 SCC 65; R. v. G.D.B., [2000] 1 S.C.R. 520, 2000 SCC 22; Fortin v. Chrétien, [2001] 2 S.C.R. 500, 2001 SCC 45; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; Law Society of British Columbia v. Mangat, [2001] 3 S.C.R. 113, 2001 SCC 67; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] 2 S.C.R. 1120, 2000 SCC 69; R. v. Askov, [1990] 2 S.C.R. 1199; R. v. Morin, [1992] 1 S.C.R. 771; Novak v. Bond, [1999] 1 S.C.R. 808; M. (K.) v. M. (H.), [1992] 3 S.C.R. 6; Murphy v. Welsh, [1993] 2 S.C.R. 1069; Peixeiro v. Haberman, [1997] 3 S.C.R. 549; [Sparham-Souter v. Town and Country Developments (Essex) Ltd., [1976] Q.B. 858]; Construction Gilles Paquette Ltée v. Entreprises Végo Ltée, [1997] 2 S.C.R. 299.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 1, 7, 8, 10(b), 11(b).

Constitution Act, 1982, s. 52.

Criminal Code, R.S.C. 1985, c. C-46, ss. 487, 488.1 [ad. c. 27 (1st Supp.), s. 71].

Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.), ss. 232, 239(1)(a), (d).

Authors Cited

Bloom, Lackland H., Jr. “The Law Office Search : An Emerging Problem and Some Suggested Solutions” (1980), 69 Geo. L.J. 1.

Canada. House of Commons. Standing Committee on Justice and Legal Affairs. Minutes of Proceedings and Evidence, Issue No. 5, January 22, 1985, p. 5:9.

Canada. Law Reform Commission. Report 24. Search and Seizure. Ottawa: The Commission, 1984.

Chasse, Kenneth L. “The Solicitor-Client Privilege and Search Warrants” (1977), 36 C.R.N.S. 349.

Davis, John E. “Law Office Searches: The Assault on Confidentiality and the Adversary System” (1996), 33 Am. Crim. L. Rev. 1251.

Hutchison, Scott C., James C. Morton and Michael P. Bury. Search and Seizure Law in Canada. Toronto: Carswell, 1991 (loose-leaf updated 2002, release 1).

Kasting, Robert A. “Recent Developments in the Canadian Law of Solicitor‑Client Privilege” (1978), 24 McGill L.J. 115.

Manes, Ronald D., and Michael P. Silver. Solicitor-Client Privilege in Canadian Law. Toronto: Butterworths, 1993.

Pinard, Danielle. “Le principe d’interprétation issu de la présomption de constitutionnalité et la Charte canadienne des droits et libertés” (1990), 35 McGill L.J. 305.

Stuart, Don. Charter Justice in Canadian Criminal Law, 3rd ed. Scarborough, Ont.: Carswell, 2001.

APPEAL (Lavallee, Rackel & Heintz v. Canada (Attorney General)) from a judgment of the Alberta Court of Appeal (2000), 184 D.L.R. (4th) 25, 255 A.R. 86, 220 W.A.C. 86, 143 C.C.C. (3d) 187, 73 C.R.R. (2d) 58, [2000] 4 W.W.R. 331, [2000] A.J. No. 159 (QL), 2000 ABCA 54, affirming a decision of the Court of Queen’s Bench (1998), 160 D.L.R. (4th) 508, 62 Alta. L.R. (3d) 306, 218 A.R. 229, 126 C.C.C. (3d) 129, 53 C.R.R. (2d) 8, [1999] 2 W.W.R. 241, [1998] A.J. No. 610 (QL), 1998 ABQB 436. Appeal dismissed, L’Heureux-Dubé, Gonthier and LeBel JJ. dissenting in part.

APPEAL and CROSS-APPEAL (White, Ottenheimer & Baker v. Canada (Attorney General)) from a judgment of the Newfoundland Court of Appeal (2000), 187 D.L.R. (4th) 581, 190 Nfld. & P.E.I.R. 181, 576 A.P.R. 181, 146 C.C.C. (3d) 28, 35 C.R. (5th) 222, 76 C.R.R. (2d) 1, [2000] N.J. No. 196 (QL), 2000 NFCA 36, allowing in part the appellants’ appeal from a decision of the Newfoundland Supreme Court, Trial Division. Appeal allowed, L’Heureux-Dubé, Gonthier and LeBel JJ. dissenting. Cross-appeal dismissed, L’Heureux-Dubé, Gonthier and LeBel JJ. dissenting in part.

APPEAL (R. v. Fink) from a judgment of the Ontario Court of Appeal (2000), 51 O.R. (3d) 577, 193 D.L.R. (4th) 51, 149 C.C.C. (3d) 321, 138 O.A.C. 142, 79 C.R.R. (2d) 121, [2000] O.J. No. 4549 (QL), setting aside a decision of the Superior Court of Justice (2000), 143 C.C.C. (3d) 566, 70 C.R.R. (2d) 181, [2000] O.J. No. 18 (QL). Appeal dismissed, L’Heureux-Dubé, Gonthier and LeBel JJ. dissenting in part.

Robert J. Frater, Peter De Freitas and David Schermbrucker, for the appellant Her Majesty the Queen, for the respondent/appellant on cross-appeal and the intervener the Attorney General of Canada.

David G. Butcher and Michael J. Hewitt, for the respondents Lavallee, Rackel & Heintz.

D. Mark Pike and Geoffrey L. Spencer, for the appellants/respondents on cross-appeal White, Ottenheimer & Baker.

Richard Macklin and Aaron Harnett, for the respondent Fink.

Michal Fairburn and Philip Downes, for the appellant Her Majesty the Queen and the intervener the Attorney General for Ontario.

Benoît Lauzon and Gilles Laporte, for the intervener the Attorney General of Quebec.

Eric Tolppanen, for the intervener the Attorney General for Alberta.

Lindsay MacDonald, Q.C., for the intervener the Law Society of Alberta.

Anne S. Derrick, Q.C., Joel Pink, Q.C., and Shane Parker, for the intervener the Federation of the Law Societies of Canada.

James L. Lebo, Q.C., for the intervener the Canadian Bar Association.

The judgment of McLachlin C.J. and Iacobucci, Major, Bastarache, Binnie and Arbour JJ. was delivered by

[1] Arbour J. — These appeals bring into question the constitutionality of s. 488.1 of the Criminal Code, R.S.C. 1985, c. C-46, which sets out a procedure for determining a claim of solicitor-client privilege in relation to documents seized from a law office under a warrant. The issue is brought before this Court by way of three separate appeals from the provinces of Alberta (Lavallee, Rackel & Heintz v. Canada (Attorney General)), Newfoundland and Labrador (White, Ottenheimer & Baker v. Canada (Attorney General)) and Ontario (R. v. Fink).

[2] Section 488.1 was also recently challenged and struck down in other matters currently not before this Court: R. v. Claus (2000), 149 C.C.C. (3d) 336 (Ont. C.A.); R. v. Piersanti & Co., [2001] G.S.T.C. 3 (Ont. C.A.); Canada (Attorney General) v. Several Clients and Several Solicitors (2000), 189 N.S.R. (2d) 313 (S.C.); Festing v. Canada (Attorney General) (2001), 2001 BCCA 612, 206 D.L.R. (4th) 98 (B.C.C.A.), leave to appeal to S.C.C. filed December 11, 2001 (Nos. 28936 and 28937).^* In an order dated December 11, 2001, Levine J.A. of the British Columbia Court of Appeal stayed the order of that court in Festing dated November 5, 2001, for a period of two weeks following the decision of this Court in the present appeals: [2001] B.C.J. No. 2666 (QL), 2001 BCCA 732.

[3] For the reasons that follow, I am of the view that s. 488.1 is unconstitutional and must accordingly be struck down pursuant to s. 52 of the Constitution Act, 1982.

I - Facts: The Three Appeals

[4] The facts of these cases are not controversial, nor are they determinative. Accordingly, all three matters can be briefly summarized as follows.

[5] In Lavallee, the R.C.M.P. obtained a search warrant in the regular form and wording pursuant to s. 487 of the Criminal Code on January 16, 1996. The search was to be executed on the following day at the law firm of Lavallee, Rackel & Heintz, in the City of Edmonton, targeting correspondence, estate files, trust records and other documents in relation to Mr. Andy Brent Polo, an individual suspected of money laundering and of being in possession of proceeds of crime. When the R.C.M.P. arrived at the law firm to execute the warrant, a solicitor who was familiar with the documents in question claimed solicitor-client privilege. The searching officers accordingly followed the procedure set out in s. 488.1 of the Criminal Code: the documents were sealed in envelopes, summarily identified and taken into police custody. The next day, January 18, 1996, counsel retained by the law firm moved in the Court of Queen’s Bench to fix a date and place for a judicial determination of privilege in reference to the seized documents in accordance with s. 488.1(3). In April 1996, the law firm gave notice of a constitutional question, alleging the unconstitutionality of s. 488.1 of the Criminal Code. The law firm and Mr. Polo also moved to quash the warrant but the application was denied in part by Dea J.: (1997), 199 A.R. 21 (Q.B.). In 1998, Veit J. struck down s. 488.1 as unconstitutional: (1998), 1998 ABQB 436, 126 C.C.C. (3d) 129 (Alta. Q.B.). The appeal from that order was dismissed unanimously by the Court of Appeal for Alberta: (2000), 2000 ABCA 54, 143 C.C.C. (3d) 187.

[6] In White, a search warrant was obtained to search the law offices of Raymond P. Whelan, including all storage facilities occupied by him at the law firm of White, Ottenheimer & Baker, in the City of St. John’s, Newfoundland. The warrant authorized officers of Revenue Canada to search the premises for documents relating to Daley Brothers Ltd. and Mr. Terry Daley who were suspected of the offences described in s. 239(1)(a) and (d) of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.). When the search was executed on June 30, 1998, a partner in the appellant law firm claimed solicitor-client privilege with respect to the targeted documents and, as a result, pursuant to s. 488.1 of the Criminal Code and s. 232 of the Income Tax Act, the documents were sealed and taken into police custody. On July 9, 1998, the law firm moved to set a date and time for the determination of privilege under both s. 488.1(3) of the Criminal Code and s. 232(4) of the Income Tax Act. On January 29, 1999, the appellants applied for a declaration that s. 488.1 of the Criminal Code and s. 232 of the Income Tax Act are contrary to s. 8 of the Canadian Charter of Rights and Freedoms. Halley J. of the Supreme Court of Newfoundland, Trial Division, dismissed the application. The Court of Appeal allowed the appeal in part, resorting to the remedial techniques of severance and reading-in to salvage the impugned section of the Criminal Code: (2000), 2000 NFCA 36, 146 C.C.C. (3d) 28.

[7] In Fink, a search warrant was executed at the law firm of Turkstra, Mazza Associates on February 8, 1999, in the City of Toronto, targeting documents relating to the appellant Jeffrey Fink who was suspected of various counts of fraud over $5,000. As result of the claim of solicitor-client privilege made on behalf of the appellant by counsel, the search was carried out according to the procedure set out in s. 488.1 of the Criminal Code and the documents were taken into police custody. On November 11, 1999, the appellant applied to the Ontario Superior Court of Justice for an order declaring s. 488.1 to be inconsistent with s. 8 of the Charter. Dambrot J. dismissed the application: (2000), 143 C.C.C. (3d) 566. Goudge J.A., for a unanimous court, allowed the appeal and declared s. 488.1 to be unconstitutional and of no force and effect: (2000), 51 O.R. (3d) 577.

II - The Impugned Provisions

[8] Criminal Code, R.S.C. 1985, c. C-46

488.1 (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) 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) 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) 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) 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) 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) 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) 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) 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 the package is resealed without alteration or damage.

(10) An application under paragraph (3)(c) shall be heard in private.

(11) This section does not apply in circumstances where a claim of solicitor-client privilege may be made under the Income Tax Act.

III - The Issues

[9] These appeals give rise to the following constitutional questions:

Does s. 488.1 of the Criminal Code, R.S.C. 1985, c. C‑46, infringe s. 7 of the Canadian Charter of Rights and Freedoms?
If so, is the infringement reasonable and demonstrably justified in a free and democratic society under s. 1 of the Charter?
Does s. 488.1 of the Criminal Code, R.S.C. 1985, c. C‑46, infringe s. 8 of the Canadian Charter of Rights and Freedoms?
If so, is the infringement reasonable and demonstrably justified in a free and democratic society under s. 1 of the Charter?

IV - Analysis

A. Law Office Searches

[10] Before the 1970s, law office searches were seldom employed in the course of criminal investigations. But since that time, there has been an observable trend in Canada and the United States towards more aggressive investigatory methods which include the issuing of warrants to search law offices for evidence of crime. See generally L. H. Bloom, Jr., “The Law Office Search: An Emerging Problem and Some Suggested Solutions” (1980), 69 Geo. L.J. 1, wherein the author partially attributes “the sudden and recent emergence of the law office search” (p. 7) in the United States to the Watergate scandal, which he claims lowered the public esteem of lawyers in general. See also J. E. Davis, “Law Office Searches: The Assault on Confidentiality and the Adversary System” (1996), 33 Am. Crim. L. Rev. 1251.

[11] In Canada, the enactment of s. 488.1 of the Criminal Code (originally s. 444.1) in 1985 was in fact the legislative response to a line of cases culminating in this Court’s decision Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860, that set out guidelines for the issuing of search warrants for law offices. From the outset, Canadian courts expressed serious concerns about the dangers of law office searches in light of solicitor-client privilege, and urged Parliament to create protective measures akin to those found in the Income Tax Act. Section 488.1 was designed to address these concerns and, in the words of the Minister of Justice, “establish a sealing procedure with respect to seized documents that will ensure protection of solicitor-client privilege” (House of Commons, Standing Committee on Justice and Legal Affairs, Minutes of Proceedings and Evidence, Issue No. 5, January 22, 1985, at p. 5:9). As it will be explained further in these reasons, s. 488.1 of the Criminal Code falls short of providing the protection it promised and, indeed, unconstitutionally jeopardizes solicitor-client privilege. Before turning to the shortcomings of s. 488.1, it is perhaps worthwhile to review the jurisprudence that lead to its enactment in order to better understand the concerns that s. 488.1 was meant to address.

B. The Pre-Descôteaux Decisions

[12] In R. v. Colvin, Ex parte Merrick (1970), 1 C.C.C. (2d) 8 (Ont. H.C.), an application was brought to quash a warrant issued by a justice of the peace authorizing police officers to enter a law firm and to search for various articles, namely, letters, correspondence, contracts and agreements which, it was alleged, would disclose evidence that the accused had committed an offence. Though he quashed the warrant on the basis that the issuing justice of the peace should not have been satisfied that the documents would afford any evidence, Osler J. also discussed the incidence of law office searches on solicitor-client privilege. He said at p. 13:

Finally, the question of solicitor‑client privilege is, in this connection, a troublesome one. On the one hand, no authority should be given carte blanche to search through the files in a solicitor's office in hopes of discovering material prepared for the purpose of advising the client in the normal and legitimate course of professional practice. The privilege, however, is exclusively that of the client and does not extend to correspondence, memoranda or documents prepared for the purpose of assisting a client to commit a crime nor to material in no way related to the giving of proper advice but stored with the solicitor purely for the purpose of avoiding seizure in the hands of the client.

At that time, solicitor-client privilege was only a rule of evidence and had not yet evolved into a substantive principle. Accordingly, Osler J. went on to state at p. 13:

. . . it must be remembered that the rule is a rule of evidence, not a rule of property. I would not be prepared, therefore, to quash a warrant respecting material which there were reasonable grounds to believe might afford evidence with respect to the commission of an offence simply because the possibility existed that such material might be covered by the solicitor‑client privilege. The only way, as I see it, in which the privilege can be asserted is by way of objection to the introduction of any allegedly privileged material in evidence at the appropriate time.

[13] In Re Presswood and International Chemalloy Corp. (1975), 11 O.R. (2d) 164 (H.C.), Osler J. had the opportunity to revise his previous dictum in light of a Federal Court of Appeal decision rendered earlier that year. Indeed, in Re Shell Canada Ltd., [1975] F.C. 184, the Director of Investigation and Research applied before a five-judge panel of the Federal Court of Appeal to set aside a decision of the court below limiting his statutory search powers. Pursuant to s. 10(1) of the Combines Investigation Act, R.S.C. 1970, c. C-23 (now the Competition Act, R.S.C. 1985, c. C-34) the Director had the power to enter any premises and copy any document which he believed was evidence relating to a matter under investigation. The court was of the view that the powers conferred on the Director did not abrogate the principle of solicitor-client privilege, which the court recognized as a fundamental principle of our legal system. Concurring, Thurlow J.A. emphasized that the principle of solicitor-client privilege may be asserted any time client confidentiality is threatened by legal authorities. He stated at p. 195:

. . . 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 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.

Relying on the authority of Shell Canada, supra, Osler J. held in Presswood, supra, that the discovery provisions of the Business Corporations Act, R.S.O. 1970, c. 53, did not override the common law solicitor-client privilege.

[14] Re Borden & Elliot and The Queen (1975), 30 C.C.C. (2d) 337 (Ont. C.A.) is, in my view, the leading pre-Descôteaux judicial consideration of the relationship between solicitor-client privilege and search warrants under the Criminal Code. This was an appeal from an order of Southey J. quashing a search warrant issued under s. 443 of the Criminal Code to search the offices of Borden & Elliot, the solicitors of a man suspected of fraud. Southey J. (whose reasons are reported immediately prior to Arnup J.A.’s oral reasons) contemplated whether search warrants could be attacked for lack of jurisdiction on the part of the issuing justice when the targeted documents are privileged. Relying on the authority of Shell Canada, supra, Southey J. concluded that solicitor-client privilege could be asserted to challenge the issuance of search warrants, holding at p. 343:

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.

Southey J. also found the information on which the warrant was based to be vague and ambiguous. The Court of Appeal for Ontario upheld the order on this last basis, carefully disassociating itself with the views expressed by Southey J. However, Arnup J.A., for the court, acknowledged the “difficult questions of solicitor-and-client privilege” as it relates to search warrants, indicating that the Criminal Code provided no guidance in terms of the limitations that might be ordered in issuing the warrant in order to protect possible claims of solicitor-client privilege. Moreover, the court observed that the Criminal Code was silent as to the procedures to be followed by lawyers who asserted solicitor-client privilege on behalf of their clients; at that time, their remedies were limited to bringing a motion to quash the search warrant. “The need for considering possible legislation is abundantly apparent”, opined Arnup J.A., at p. 348.

[15] A few months later, in Re B.X. Development Inc. and The Queen (1976), 31 C.C.C. (2d) 14 (B.C.C.A.), Bull J.A. held on the authority of Shell Canada, supra, and Borden & Elliot, supra, that search warrants issued pursuant to s. 443 of the Criminal Code could be quashed where the targeted documents are plainly subject to solicitor-client privilege. As properly observed by the authors S. C. Hutchison, J. C. Morton and M. P. Bury, in Search and Seizure Law in Canada (loose-leaf), at p. 10-17: “In making this statement, Mr. Justice Bull, became the first Canadian Court of Appeal judge to suggest that the solicitor-client privilege might override the warrant provisions of the Criminal Code.”

[16] Dickson J. (as he then was) commented on this expansion of solicitor-client privilege in his reasons for judgment in Solosky v. The Queen, [1980] 1 S.C.R. 821. In that case, the appellant Solosky, imprisoned at Millhaven Institution, invoked solicitor-client privilege to prevent the Director of the penitentiary from censoring his correspondence with his lawyer, a power conferred to the Director under the Penitentiary Act, R.S.C. 1970, c. P-6. In dismissing the appeal, Dickson J. stated that while solicitor-client privilege had undergone a significant expansion in recent years, it had still not become a rule of property and could not operate to prevent the censorship order. Indeed, an inmate’s mail is opened, not with a view of obtaining evidence for a subsequent proceeding, but by reason of the exigencies of institutional security. In short, solicitor-client privilege did not apply to the appellant’s case. Nevertheless, Dickson J. clearly stated that solicitor-client privilege had become a “fundamental civil and legal right” (Solosky, supra, at p. 839); see also Geffen v. Goodman Estate, [1991] 2 S.C.R. 353, at p. 383; Smith v. Jones, [1999] 1 S.C.R. 455; R. v. McClure, [2001] 1 S.C.R. 445, 2001 SCC 14, wherein Major J., for the Court, described solicitor-client privilege as a principle of fundamental justice within the meaning of s. 7 of the Charter (at pp. 453-60), and R. v. Brown, [2002] 2 S.C.R. 185, 2002 SCC 32. The Solosky decision remains an important restatement by this Court of the historical development of the privilege. See particularly pp. 834-38. For a general discussion of the jurisprudential expansion of solicitor-client privilege discussed above see also K. L. Chasse, “The Solicitor-Client Privilege and Search Warrants” (1977), 36 C.R.N.S. 349; R. A. Kasting, “Recent Developments in the Canadian Law of Solicitor-Client Privilege” (1978), 24 McGill L.J. 115.

C. Descôteaux v. Mierzwinski

[17] This case involved the search of a legal aid bureau for evidence that an applicant for legal aid had illegally reported a lower income in order to be eligible for such services. The search was conducted in the presence of the syndic of the Bar and the police officers agreed to receive the documents in sealed envelopes pending the judicial determination of solicitor-client privilege. The legal aid bureau and Mr. Descôteaux brought a motion before the Superior Court in Montreal to quash the warrant on the grounds that the documents were protected by solicitor-client privilege. The Superior Court dismissed the motion and held that the documents were not privileged since they had been prepared before the solicitor-client relationship came into existence, [1978] C.S. 792. The Quebec Court of Appeal dismissed the appeal, adopting the conclusions of the Superior Court and stating further that solicitor‑client privilege could not apply if the communication was made in furtherance of a criminal act or to facilitate the commission of a crime: (1980), 16 C.R. (3d) 188.

[18] Writing for the Court, Lamer J. (as he then was) dismissed the appeal. After briefly tracing the historical development of solicitor-client privilege as a rule of evidence, Lamer J. confirmed that solicitor-client privilege had evolved into a substantive principle, referring to this Court’s decision in Solosky, supra. He stated at p. 875:

It is quite apparent that the Court in that case [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.

Lamer J. went on to formulate the elements of the substantive rule concisely in the following terms (at p. 875), elements which, in my view, largely govern the outcome of the appeals presently before the Court:

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 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.

D. Introduction to Section 488.1

[22] It seems clear from this background that s. 488.1 of the Code was enacted in an effort to address the specificity of the searches of lawyers’ business premises and, in particular, to ensure that privileged communications made to a lawyer were properly exempted from the reach of that investigative technique. At the same time, to the extent that s. 488.1 only applies “[w]here an officer acting under the authority of [the Criminal Code] or any other Act of Parliament is about to examine, copy, or seize a document in the possession of a lawyer” (emphasis added), it is clear that the provision was never intended to supersede the common law principles pertaining to the issuance of a warrant in the law office context, as discussed by Lamer J. in Descôteaux, supra. That is, s. 488.1 does not attempt to deal with the process for authorizing the search of law offices but merely with the manner in which they are carried out. The question before us is whether this attempt reached the constitutional mark. Not all communications between a solicitor and a client are covered by privilege (Solosky, supra, at p. 829). In the context of civil litigation, for example, affidavits of documents are produced, identifying documents that would otherwise be discoverable, but that are claimed as privileged and thus exempt from disclosure.

[23] In the context of a criminal investigation, the privilege acquires an additional dimension. The individual privilege holder is facing the state as a “singular antagonist” and for that reason requires an arsenal of constitutionally guaranteed rights (Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, at p. 994). It is particularly when a person is the target of a criminal investigation that the need for the full protection of the privilege is activated. It is then not an abstract proposition but a live issue of ensuring that the privilege delivers on the promise of confidentiality that it holds.

[24] It is critical to emphasize here that all information protected by the solicitor-client privilege is out of reach for the state. It cannot be forcibly discovered or disclosed and it is inadmissible in court. It is the privilege of the client and the lawyer acts as a gatekeeper, ethically bound to protect the privileged information that belongs to his or her client. Therefore, any privileged information acquired by the state without the consent of the privilege holder is information that the state is not entitled to as a rule of fundamental justice.

[25] It is in that context that we must ask whether Parliament has taken all required steps to ensure that there is no deliberate or accidental access to information that is, as a matter of constitutional law, out of reach in a criminal investigation.

E. The Constitutional Failings of Section 488.1 Identified in the Proceedings Below

[26] As stated above, the appellate courts of Alberta, British Columbia, Newfoundland, Nova Scotia and Ontario all held that the procedure set out in s. 488.1 unconstitutionally offended to the rights enshrined in s. 8 of the Charter. In coming to that conclusion, these courts identified several problems within the provisions of s. 488.1 which, either directly or indirectly, compromise the integrity of solicitor-client privilege.

(1) Absence or Inaction of Solicitor

[27] The courts below all found that privilege may be lost through the absence or the inaction of the solicitor. Pursuant to s. 488.1(2), the sealing procedure is only engaged if “a lawyer . . . claims that a named client of his has a solicitor-client privilege” (emphasis added) in respect of the documents. If the solicitor is not present at the time and place of the search, the officers conducting the search must give the lawyer a reasonable opportunity to make the claim of privilege, as directed by s. 488.1(8). If no claim is made, they may seize the documents and freely examine their contents, thus causing the privilege to be lost. Similarly, the privilege may also be lost if the solicitor is present but fails to claim the privilege for whatever reason (incompetence, sickness or out of sheer nervousness arising out of having his or her office searched). See Lavallee, supra, at paras. 28 and 37; White, supra, at para. 21; Fink, supra, at para. 34; and, Festing, supra, at para. 17.

(2) The Naming of Clients

[28] Courts have also identified another offensive aspect of s. 488.1(2) in the requirement that the lawyer name the client whose privilege is being threatened in order to engage the sealing procedure with respect to that client’s documents. The name of the client may very well be protected by solicitor-client privilege, although this is not always the case. See Thorson v. Jones (1973), 38 D.L.R. (3d) 312 (B.C.S.C.); R. D. Manes and M. P. Silver, Solicitor-Client Privilege in Canadian Law (1993), at p. 141. Where the name of the client is indeed privileged information, s. 488.1(2) compels the lawyer to choose between two different privileged items: the name of the client or the confidential documents targeted by the search. In these situations, s. 488.1(2) requires that one privilege be sacrificed so that the other may be salvaged. See Lavallee, supra, at para. 50; White, supra, at para. 21; Fink, supra, at para. 39; Festing, supra, at para. 17, and Several Clients, supra, at para. 38.

(3) No Notice Given to Client

[29] The courts below also criticized the fact that s. 488.1 fails to ensure that all interested clients are notified when their documents are about to be turned over to the investigators. Indeed, the procedure does not provide for the mandatory notification of privilege holders. This absence of notice is particularly striking when, as described above, the solicitor is absent or fails to act, thus irremediably depriving the client of the opportunity to assert his or her solicitor-client privilege. The absence of notice is the first step in a series of consequences which can be fatal to maintaining the confidentiality of privileged documents. See Lavallee, supra, at paras. 28-39; White, supra, at para. 21; Fink, supra, at para. 42; Festing, supra, at para. 17, and Several Clients, supra, at para. 38.

(4) Strict Time Limits

[30] If the privilege is not asserted at the time of the search, for whatever reason, the seized documents may be examined by the investigating officers and prosecutors. Even if solicitor-client privilege is asserted at the time of the search, it may still be lost if the client or solicitor fails to move for “a place and a day . . . for the determination of the question whether the document should be disclosed” within 14 days of the search and seizure, as provided by s. 488.1(3)(a)(i) of the Criminal Code. In Lavallee, Côté J.A. further observed at para. 41: “The looming ‘14-day time’ limit under s. 488.1(3) is really only 10 to 11 days, because the subsection says that 2 days’ notice must be given. In view of the Interpretation Act, R.S.C. 1985, c. I-21, s. 27(2), that will eat up at least 3 days. Since the lawyer needs authority to move in court, and since only the client owns the privilege and can move, the 10 or 14 days might well be missed.” This time limit was held to be unreasonably strict and unworkable by the courts below. This procedural rigidity is exacerbated by the fact that no time extension can be granted without the consent of the Crown. See also White, supra, at para. 21; Fink, supra, at para. 34; Festing, supra, at para. 17, and Several Clients, supra, at para. 38.

(5) Absence of Discretion

[31] Even in cases where the privilege has been asserted at the first opportunity, if the strict procedures outlined above are not followed, the Code provides that the court has no remedial discretion to relieve the privilege holder from his or her default and maintain the confidentiality of the information claimed to be privileged. This means that if an application is not made within 14 days of the search for a judicial determination of the validity of the claim of privilege, and if the consent of the Attorney General cannot be obtained for an extension of time, the judge has no discretion under the Code and must order that the documents seized and held under seal be turned over to the prosecution. Pursuant to s. 488.1(6), “the judge shall order” (emphasis added) that the documents be delivered to the prosecuting authorities. See White, supra, at para. 21; Fink, supra, at para. 35. The courts in Festing, supra, and Several Clients, supra, also found this aspect to be particularly offensive.

(6) Access of the Attorney General Prior to Judicial Determination

[32] Finally, some appellate courts took issue with the fact that, pursuant to s. 488.1(4)(b), the Attorney General may be allowed to inspect the documents where the judge is of the opinion that it would materially assist the court in determining the question of privilege. Several courts held that this subsection effectively nullifies solicitor-client privilege before it is even determined that such privilege exists. The courts were of the view that the Crown does not need to inspect the documents in order to make meaningful submissions with regards to the seized documents and that the issue of privilege could be determined without allowing the Attorney General to access the seized documents. In the first instance of Festing, Romilly J. opined at para. 82: “I fail to see how disclosure to the prosecuting authority for the purposes of determining privilege is a practical necessity. I appreciate that eventually someone will have to see the documents in order to decide privilege. But surely that someone does not have to be the prosecuting authority” ((2000), 31 C.R. (5th) 203). See also Fink, supra, at para. 34; Festing (C.A.), supra, at para. 19; Several Clients, supra, at para. 41.

[33] The legislative deficiencies described above were held to impair solicitor-client privilege beyond any tolerable constitutional limit by the appellate courts of British Columbia (Festing, supra), Nova Scotia (Several Clients, supra) and Ontario (Fink, supra; Claus, supra; and Piersanti, supra) who accordingly all struck down s. 488.1 of the Criminal Code. While it endorsed the grounds identified in Lavallee in finding that s. 488.1 was unconstitutional, the Court of Appeal for Newfoundland (White, supra) ultimately decided that the section could be saved in accordance with the guidelines given by this Court in Schachter v. Canada, [1992] 2 S.C.R. 679, and by resorting to legislative severance and reading-in. More will be said on the issue of remedy further in these reasons.

F. Section 488.1 Violates Section 8 of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

[34] The proper approach to the constitutional issues here is under s. 8 of the Charter, and there is no need to undertake an independent s. 7 analysis. This was properly explained in Fink by Goudge J.A., at para. 15:

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.

[35] If the procedure set out in s. 488.1 results in an unreasonable search and seizure contrary to s. 8 of the Charter, it follows that s. 488.1 cannot be said to comply with the principles of fundamental justice embodied in s. 7. See also Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486. In R. v. Edwards, [1996] 1 S.C.R. 128, at para. 33, Cory J. stated that “[t]here are two distinct questions which must be answered in any s. 8 challenge. The first is whether the accused had a reasonable expectation of privacy. The second is whether the search was an unreasonable intrusion on that right to privacy.” A client has a reasonable expectation of privacy in all documents in the possession of his or her lawyer, which constitute information that the lawyer is ethically required to keep confidential, and an expectation of privacy of the highest order when such documents are protected by the solicitor-client privilege. This is not at issue in this case. I will therefore proceed immediately to the second step of the s. 8 analysis, namely the reasonableness of the statutory intrusion on the privacy interests of solicitor’s clients.

[36] At this stage, the issue is whether the procedure set out by s. 488.1 results in a reasonable search and seizure of documents, including potentially privileged documents, in the possession of a lawyer. Indeed, s. 8 only protects against unreasonable searches and seizures: Hunter v. Southam Inc., [1984] 2 S.C.R. 145. In commenting on the fact that a reasonable search and seizure is permitted under s. 8 of the Charter, Dickson J. stated, at pp. 159-60:

This limitation on the right guaranteed by s. 8, whether it is expressed negatively as freedom from “unreasonable” search and seizure, or positively as an entitlement to a “reasonable” expectation of privacy, indicates that an assessment must be made as to whether in a particular situation the public's interest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy in order to advance its goals, notably those of law enforcement.

Since Hunter, this Court has striven to strike an appropriate balance between privacy interests on the one hand and the exigencies of law enforcement on the other. See R. v. Araujo, [2000] 2 S.C.R. 992, 2000 SCC 65; R. v. Golden, [2001] 3 S.C.R. 679, 2001 SCC 83. Sometimes, however, the traditional balancing of interests involved in a s. 8 analysis is inappropriate. As it was stated in R. v. Mills, [1999] 3 S.C.R. 668, at para. 86, “the appropriateness of the balance is assessed according to the nature of the interests at stake in a particular context, and the place of these interests within our legal and political traditions”. Where the interest at stake is solicitor-client privilege — a principle of fundamental justice and civil right of supreme importance in Canadian law — the usual balancing exercise referred to above is not particularly helpful. This is so because the privilege favours not only the privacy interests of a potential accused, but also the interests of a fair, just and efficient law enforcement process. In other words, the privilege, properly understood, is a positive feature of law enforcement, not an impediment to it. This was emphasized by this Court in McClure, supra, where Major J., writing for the Court, stated, at paras. 32 and 34-35:

That solicitor‑client privilege is of fundamental importance was repeated in Jones, supra, per Cory J., at para. 45:

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.

Despite its importance, solicitor‑client privilege is not absolute. It is subject to exceptions in certain circumstances. Jones, supra, examined whether the privilege should be displaced in the interest of protecting the safety of the public, per Cory J. at para. 51:

Just as no right is absolute so too the privilege, even that between solicitor and client, is subject to clearly defined exceptions. The decision to exclude evidence that would be both relevant and of substantial probative value because it is protected by the solicitor‑client privilege represents a policy decision. It is based upon the importance to our legal system in general of the solicitor‑client privilege. In certain circumstances, however, other societal values must prevail.

However, solicitor‑client privilege must be as close to absolute as possible to ensure public confidence and retain relevance. As such, it will only yield in certain clearly defined circumstances, and does not involve a balancing of interests on a case‑by‑case basis. [Emphasis added.]

Indeed, solicitor-client privilege must remain as close to absolute as possible if it is to retain relevance. Accordingly, this Court is compelled in my view to adopt stringent norms to ensure its protection. Such protection is ensured by labeling as unreasonable any legislative provision that interferes with solicitor-client privilege more than is absolutely necessary. In short, in the specific context of law office searches for documents that are potentially protected by solicitor-client privilege, the procedure set out in s. 488.1 will pass Charter scrutiny if it results in a “minimal impairment” of solicitor-client privilege.

[37] Minimal impairment has long been the standard by which this Court has measured the reasonableness of state encroachments on solicitor-client privilege. Recently, in Brown, supra, in defining the scope of the “innocence at stake” exception to solicitor-client privilege, this Court insisted that the judge order the “production of only those communications that are necessary to allow an accused, whose innocence is otherwise at stake, to raise a reasonable doubt as to his guilt” (para. 77). In Jones, supra, this Court held at para. 77 that even where public safety is at stake, there must be a clear and imminent risk of serious bodily harm or death to an identifiable person or group before solicitor-client privilege can be compromised. Moreover, where it is determined that these criteria are met, the majority in Jones held that “[t]he disclosure of the privileged communication should generally be limited as much as possible” (para. 86). Major J., dissenting on another point, agreed at para. 28 that “solicitor-client privilege is a fundamental common law right of Canadians. . . . Anytime such a fundamental right is eroded the principle of minimal impairment must be observed”. As I noted earlier in these reasons at para. 20, the minimal impairment standard was also applied in Descôteaux, supra, where Lamer J. instructed justices of the peace to be “particularly demanding” when issuing warrants to search law offices, so to “limit the breach of this fundamental right [solicitor-client privilege] to what is strictly inevitable” (p. 891).

[38] Does s. 488.1 more than minimally impair solicitor-client privilege? It is my conclusion that it does.

[39] While I think it unnecessary to revisit the numerous statements of this Court on the nature and primacy of solicitor-client privilege in Canadian law, it bears repeating that the privilege belongs to the client and can only be asserted or waived by the client or through his or her informed consent (Solosky, supra; Descôteaux, supra; Geffen, supra; Jones, supra; McClure, supra; Benson, supra). In my view, the failings of s. 488.1 identified in numerous judicial decisions and described above all share one principal, fatal feature, namely, the potential breach of solicitor-client privilege without the client’s knowledge, let alone consent. The fact that competent counsel will attempt to ascertain the whereabouts of their clients and will likely assert blanket privilege at the outset does not obviate the state’s duty to ensure sufficient protection of the rights of the privilege holder. Privilege does not come into being by an assertion of a privilege claim; it exists independently. By the operation of s. 488.1, however, this constitutionally protected right can be violated by the mere failure of counsel to act, without instruction from or indeed communication with the client. Thus, s. 488.1 allows the solicitor-client confidentiality to be destroyed without the client’s express and informed authorization, and even without the client’s having an opportunity to be heard.

[40] In that respect I note that s. 488.1(8), which requires the investigative officers to give reasonable opportunity for a claim of solicitor-client privilege to be made before examining, making copies or seizing any documents, is limited to a claim “to be made under subsection (2)”. The claim under subs. (2) is of course the claim that the lawyer is required to make, at the time of the search, in order to trigger the further procedural protections provided for in s. 488.1. Therefore, under this statutory scheme, reasonable opportunity has to be provided to the privilege keeper, but not to the privilege holder, to ensure that the privileged information remains so. This positive obligation on counsel shifts the burden of guaranteeing the respect for Charter rights from the state to the lawyer. I stress here that I am making no adverse assumption about the competence, professionalism and integrity of lawyers. However, in the context of searches of law offices, it cannot simply be assumed that the lawyer is the alter ego of the client. The solicitor-client relationship may have been terminated long before the search. This of course does not displace the duty of loyalty owed by the solicitor to the client. But law office searches may place lawyers in a conflict of interest with their clients, or may place them in conflict regarding their ongoing duties to several present and former clients. I cannot see how s. 488.1(8), limited as it is, can raise this entire procedural scheme to a standard of constitutional reasonableness when it fails to address directly the entitlement that the privilege holder, the client, should have to ensure the adequate protection of his or her rights. Indeed, because of the complete lack of notification provisions within the s. 488.1 scheme, the client may not even be aware that his or her privilege is threatened.

[41] In cases where it would not be feasible to notify the potential privilege holders that they need to assert their privilege in order to bar an intrusion by the state into these protected materials, at the very least independent legal intervention, for instance in the form of notification and involvement of the Law Society, would go a long way to afford the protection that is so lacking under the present regime. Indeed, this is done routinely as a matter of practice in Quebec, and occasionally elsewhere. For a detailed description of the practice in Quebec, see Maranda v. Québec (Juge de la Cour du Québec) (2001), 47 C.R. (5th) 162, 161 C.C.C. (3d) 64 (Que. C.A.), at paras. 34 to 38, application for leave to appeal granted May 16, 2002, [2002] 2 S.C.R. vii.

[42] I stress here again that the enactment of s. 488.1 represents an attempt to respect the solicitor-client privilege. However, in order to respect the constitutional imperatives, the enactment must strive to ensure that the chances of the state’s accessing, through a search warrant, privileged information to which the state has no right of access, are reduced to their reasonable minimum. In my view, since the right of the state to access this information is, in law, conditional on the consent of the privilege holder, all efforts to notify that person, or an appropriate surrogate such as the Law Society, must be put in place in order for the section to conform to s. 8 of the Charter.

[43] Another fatal flaw in the current statutory scheme is, in my view, the absence of judicial discretion in the determination of the validity of an asserted claim of privilege. I am not unduly concerned with the apparently strict time limits imposed by the Code for this issue to be dealt with, as I believe that a proper interpretation of these provisions would permit a court to relieve a party from its default to comply with the statutory time line, for instance on consent, in the interest of justice. However, I cannot see how one can read a residual judicial discretion in s. 488.1(6) which confers an entitlement on the Crown to access the seized documents if an application has not been made, or has not been proceeded with, with the dispatch required by subss. (2) and (3). The language is clear, “the judge shall” order the documents released to the prosecution. Short of replacing the word “shall” with the word “may” by way of constitutional remedy, a point to which I will return below, I cannot see how, as a matter of sound statutory interpretation, one can interpret this provision as containing an element of judicial discretion. Again, measured against the constitutional standard of reasonableness in s. 8 of the Charter, this mandatory disclosure of potentially privileged information, in a case where the court has been alerted to the possibility of privilege by the fact that the documents were sealed at the point of search, cannot be said to minimally impair the privilege. It amounts to an unjustifiable vindication of form over substance, and it creates a real possibility that the state may obtain privileged information that a court could very well have recognized as such. In my view, reasonableness dictates that courts must retain a discretion to decide whether materials seized in a lawyer’s office should remain inaccessible to the state as privileged information if and when, in the circumstances, it is in the interest of justice to do so.

[44] I also find an unjustifiable impairment of the privilege in the provision in s. 488.1(4)(b), which permits the Attorney General to inspect the seized documents where the applications judge is of the opinion that it would materially assist him or her in deciding whether the document is privileged. This particular aspect of s. 488.1 was disapproved of by the Law Reform Commission of Canada who felt that “granting the Crown access to confidential communications passing between a solicitor and his client would diminish the public’s faith in the administration of justice and create a potential for abuse” (p. 60). See Law Reform Commission of Canada, Report 24, Search and Seizure (1984), Recommendation Seven, at p. 58. I agree. As Goudge J.A. stated at para. 40 of his reasons in Fink, supra: “The effect of this provision is the complete loss of the protection afforded by the very privilege that may subsequently be determined to apply.” It should be noted however that while the substantive aspect of the privilege is irremediably lost by operation of s. 488.1(4)(b), its evidentiary component remains untouched and continues to protect the privileged documents from being entered into evidence. See Borden & Elliot, supra, at p. 343. However, in my opinion and as Southey J. recognized in that case, “[i]t would be small comfort indeed” for the privilege holder that the law prevents the introduction of his or her confidential documents into evidence when their contents have already been disclosed to the prosecuting authority. Ultimately, any benefit that might accrue to the administration of justice from the Crown’s being in a better position to assist the court in determining the existence of the privilege is, in my view, greatly outweighed by the risk of disclosing privileged information to the state in the conduct of a criminal investigation. I also cannot understand the logic of the argument that the Crown should be trusted not to use information obtained under that provision if it subsequently proved to have been the proper subject of a privilege. If, as would be the case under this provision, the conduct of the Crown examining the documents would have been entirely lawful, it is difficult to understand why the Crown should then refrain from making use of such knowledge lawfully acquired. In the end, this provision is unduly intrusive upon the privilege and of limited usefulness in determining its existence.

[45] In short, in my opinion, s. 488.1 fails to ensure that clients are given a reasonable opportunity to exercise their constitutional prerogative to assert or waive their privilege. Far from upholding solicitor-client confidentiality, s. 488.1 permits the privilege to fall through the interstices of its inadequate procedure. The possible automatic loss of protection against unreasonable search and seizure through the normal operation of the law cannot be reasonable. Nor can the provision be infused with reasonableness in a constitutional sense on the basis of an assumption that the prosecution will behave honourably and, for instance, initiate a review under s. 488.1(3), if neither the client nor the lawyer has done so, or refrain from exercising the right to inspect the sealed documents, even though authorized to do so by the reviewing judge, as contemplated by s. 488.1(4)(b). As Cory J. observed in R. v. Bain, [1992] 1 S.C.R. 91, at pp. 103-4: “Unfortunately it would seem that whenever the Crown is granted statutory power that can be used abusively then, on occasion, it will indeed be used abusively. The protection of basic rights should not be dependent upon a reliance on the continuous exemplary conduct of the Crown, something that is impossible to monitor or control.” Even more so, I would add that the constitutionality of a statutory provision cannot rest on an expectation that the Crown will refrain from doing what it is permitted to do.

[46] For these reasons, I find that s. 488.1 more than minimally impairs solicitor-client privilege and thus amounts to an unreasonable search and seizure contrary to s. 8 of the Charter. The appellants did not make any submissions on the issue of whether s. 488.1 could be saved under s. 1 of the Charter in the event it was found to be unconstitutional, as I have found it to be. Although this Court has left open the possibility that violations of ss. 7 and 8 could be saved under s. 1 in exceptional circumstances, this is clearly not such a case. See Re B.C. Motor Vehicle Act, supra; Hunter, supra; Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, 2002 SCC 1, at para. 78. See also D. Stuart, Charter Justice in Canadian Criminal Law (3rd ed. 2001), at pp. 24-25 and 245. In particular, if, as here, the violation of s. 8 is found to consist of an unjustifiable impairment of the privacy interest protected by that section, everything else aside, it is difficult to conceive that the infringement could survive the minimal impairment part of the Oakes test. See R. v. Heywood, [1994] 3 S.C.R. 761, at pp. 802-3. I therefore conclude that s. 488.1 could not be saved by s. 1: while effective police investigations are indisputably a pressing and substantive concern, s. 488.1 cannot be said to establish proportional means to achieve that objective inasmuch as it more than minimally impairs solicitor-client privilege.

V - Remedy

[47] In White, supra, the Court of Appeal for Newfoundland held that the constitutional failings in s. 488.1 could be cured by a remedial interpretation of that section, resorting to such techniques as severance and reading-in. By contrast, the appellate courts in Lavallee, supra, and Fink, supra, thought it best to declare s. 488.1 unconstitutional and not engage in any judicial re-crafting of the impugned provision on the basis that, given the complexities involved, “[i]t is better that Parliament have a chance to sort all this out.” (Lavallee, supra, at para. 105)

[48] Some of the procedural shortcomings of s. 488.1 could be addressed by such techniques as severance or reading in. For instance, s. 488.1(4)(b) could be severed from the rest of the section, thus removing the offensive provision permitting the Attorney General to inspect documents that may be privileged. Section 488.1(3)(a) could be read to include after the words “within fourteen days” and “not later than twenty-one days” the expression: “or such time as the court deems appropriate”. However, these are not at the heart of the constitutional infirmity of the provision. The need to ensure that privilege holders are given a genuine opportunity to enforce the protection of their confidential communications to their lawyers, at the time when they need the protection of the law the most, cannot easily be met by a judicial redrafting of the provision. Neither can the need to ensure that the courts are given enough flexibility and discretion to remain the protectors of constitutional rights and the guardians of the law. In my view, the process for seizing documents in the possession of a lawyer is indeed a delicate matter, which presents some procedural options that are best left to Parliament. It also requires that legislation be carefully drafted. This Court is not asked to rewrite s. 488.1, nor am I inclined to do so. Rather, I think the proper course of action is to declare s. 488.1 unconstitutional and strike it down pursuant to s. 52 of the Constitution Act, 1982. As Côté J.A. properly observed in Lavallee, supra, at para. 105: “There is doubtless more than one constitutional way to legislate to alleviate the legitimate concerns of the police, of lawyers, and of their clients, over privilege claims during searches. Parliament should be allowed to choose that way which it thinks most apt.” However, Parliament’s prerogative to legislate anew in this area of criminal law enforcement would be better exercised, in my view, with the benefit of further consultation with those charged or affected by its interpretation and application.

[49] In the interim, I will articulate the general principles that govern the legality of searches of law offices as a matter of common law until Parliament, if it sees fit, re-enacts legislation on the issue. These general principles should also guide the legislative options that Parliament may want to address in that respect. Much like those formulated in Descôteaux, supra, the following guidelines are meant to reflect the present-day constitutional imperatives for the protection of solicitor-client privilege, and to govern both the search authorization process and the general manner in which the search must be carried out; in this connection, however, they are not intended to select any particular procedural method of meeting these standards. Finally, it bears repeating that, should Parliament once again decide to enact a procedural regime that is restricted in its application to the actual carrying out of law office searches, justices of the peace will accordingly remain charged with the obligation to protect solicitor-client privilege through application of the following principles that are related to the issuance of search warrants:

No search warrant can be issued with regards to documents that are known to be protected by solicitor-client privilege.
Before searching a law office, the investigative authorities must satisfy the issuing justice that there exists no other reasonable alternative to the search.
When allowing a law office to be searched, the issuing justice must be rigorously demanding so to afford maximum protection of solicitor-client confidentiality.
Except when the warrant specifically authorizes the immediate examination, copying and seizure of an identified document, all documents in possession of a lawyer must be sealed before being examined or removed from the lawyer’s possession.
Every effort must be made to contact the lawyer and the client at the time of the execution of the search warrant. Where the lawyer or the client cannot be contacted, a representative of the Bar should be allowed to oversee the sealing and seizure of documents.
The investigative officer executing the warrant should report to the justice of the peace the efforts made to contact all potential privilege holders, who should then be given a reasonable opportunity to assert a claim of privilege and, if that claim is contested, to have the issue judicially decided.
If notification of potential privilege holders is not possible, the lawyer who had custody of the documents seized, or another lawyer appointed either by the Law Society or by the court, should examine the documents to determine whether a claim of privilege should be asserted, and should be given a reasonable opportunity to do so.
The Attorney General may make submissions on the issue of privilege, but should not be permitted to inspect the documents beforehand. The prosecuting authority can only inspect the documents if and when it is determined by a judge that the documents are not privileged.
Where sealed documents are found not to be privileged, they may be used in the normal course of the investigation.
Where documents are found to be privileged, they are to be returned immediately to the holder of the privilege, or to a person designated by the court.

Solicitor-client privilege is a rule of evidence, an important civil and legal right and a principle of fundamental justice in Canadian law. While the public has an interest in effective criminal investigation, it has no less an interest in maintaining the integrity of the solicitor-client relationship. Confidential communications to a lawyer represent an important exercise of the right to privacy, and they are central to the administration of justice in an adversarial system. Unjustified, or even accidental infringements of the privilege erode the public’s confidence in the fairness of the criminal justice system. This is why all efforts must be made to protect such confidences.

VI - Conclusion

[50] I conclude that s. 488.1 violates s. 8 of the Charter and must be struck down. It cannot be saved under s. 1. Accordingly, I would dismiss the appeals in Lavallee, supra, and Fink, supra. In Fink, the respondent should have his costs of the appeal in light of the agreement of the Crown to that effect. In White, supra, I would allow the appeal and I would set aside the decision of the Court of Appeal for Newfoundland to rewrite the impugned section; I would dismiss the cross-appeal.

[51] The constitutional questions should be answered as follows:

Does s. 488.1 of the Criminal Code, R.S.C. 1985, c. C‑46, infringe s. 7 of the Canadian Charter of Rights and Freedoms?

There is no need to answer the question.

If so, is the infringement reasonable and demonstrably justified in a free and democratic society under s. 1 of the Charter?

There is no need to answer this question.

Does s. 488.1 of the Criminal Code, R.S.C. 1985, c. C‑46, infringe s. 8 of the Canadian Charter of Rights and Freedoms?

Yes.

If so, is the infringement reasonable and demonstrably justified in a free and democratic society under s. 1 of the Charter?

No.

The reasons of L’Heureux-Dubé, Gonthier and LeBel JJ. were delivered by

LeBel J. (dissenting in part) —

I. Introduction

[52] I agree with my colleague Justice Arbour that lawyers’ important role in the litigation process — as officers of the court and as advisers in the dispensing of legal advice — requires that the solicitor-client privilege be strictly upheld. However, I disagree with her finding that s. 488.1 of the Criminal Code, R.S.C. 1985, c. C-46, is unconstitutional, a finding she reaches on the basis of a strict and rigid interpretation of the statute and on the premise that lawyers will not discharge their professional duties in a diligent and competent manner, as required by their codes of professional conduct. Save for s. 488.1(4), s. 488.1 can be interpreted in a manner that comports with constitutional guarantees by assuming, as courts should, that lawyers will discharge their obligations to their clients in a manner which reflects their status as, sometimes, officers of the court, and, always, as independent professionals playing a key function in the life of the Canadian legal system. Section 488.1 represents a well-targeted legislative response to judgments of this Court and to the need to address the problems which attend searches and seizures executed in lawyers’ offices. It aims at protecting privilege, not at destroying it. It builds on jurisprudential and legislative rules governing the issuance of search warrants. As a result, it does not infringe either s. 7 or s. 8 of the Canadian Charter of Rights and Freedoms.

[53] As Arbour J. states in her reasons, the facts are straightforward and not subject to much interpretation; I need not repeat them. The legal issues, on the other hand, have proven to be far more problematic. First, I will turn to the problems of statutory interpretation in the context of constitutional litigation. I will then review the legal underpinnings of a finding of unconstitutionality, in light of the nature and function of the legal profession in Canadian society. I will move on to a discussion of the specific provisions which are being challenged in these appeals. This analysis will lead to a different disposition of these appeals than that proposed by Arbour J.

II. Legislative Interpretation and Constitutional Litigation

[54] Techniques of legal interpretation are many, often subtle and, at times, apparently in conflict one with another. Nevertheless, over time, key rules have emerged that play a major part in constitutional litigation. The interpreter looks first at the purpose of the statute as this Court held in the well-known and oft-cited Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21 (see also Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42, at para. 26). Given this overriding principle, if there is ambiguity, the interpreter then looks for an interpretation that will save the law rather than render it unconstitutional. However, if no reasonable interpretation that is consistent with the purpose and wording of the Act can be found, the statute will be held invalid. In the course of such an analysis, courts must remember that constitutionality is presumed and that invalidity must be shown. Nevertheless, ambiguity may not be artificially created in order to save a statute. (See Bell ExpressVu, at para. 28.)

[55] The rule that, whenever different reasonable legislative interpretations remain possible, a construction which saves the validity of the law must be preferred, has been often stated. For example, in Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, Lamer J. (as he then was) confirmed, at p. 1078, its validity and relevance in the context of Charter litigation as a central principle of constitutional interpretation:

Although this Court must not add anything to legislation or delete anything from it in order to make it consistent with the Charter, there is no doubt in my mind that it should also not interpret legislation that is open to more than one interpretation so as to make it inconsistent with the Charter and hence of no force or effect.

[56] The Court has remained faithful to this interpretive approach in constitutional litigation. In R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2, McLachlin C.J. thus observed, at para. 33, that it supplements the purposive interpretation adopted in Rizzo:

Supplementing this approach is the presumption that Parliament intended to enact legislation in conformity with the Charter . . . . If a legislative provision can be read both in a way that is constitutional and in a way that is not, the former reading should be adopted.

(See also Vidéotron Ltée v. Industries Microlec Produits Électroniques Inc., [1992] 2 S.C.R. 1065, at pp. 1071-72, per Lamer C.J.; Symes v. Canada, [1993] 4 S.C.R. 695, at p. 751, per Iacobucci J.; see also D. Pinard, “Le principe d’interprétation issu de la présomption de constitutionnalité et la Charte canadienne des droits et libertés” (1990), 35 McGill L.J. 305, at p. 328.)

[57] Thus, whether an infringement of the Charter, and more particularly of s. 8, has been made out will turn, in part, on the content and meaning of the statutory provisions at issue. Content and meaning, in turn, need to be examined in the legislative context of the provisions at issue in order to characterize s. 488.1 of the Criminal Code accurately.

III. Nature and Purpose of Section 488.1

[58] Section 488.1 does not stand in isolation. While it concerns the execution of search warrants, their issuance is governed by s. 487 and jurisprudential rules developed by this Court, more particularly in Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860. Briefly stated, s. 487 requires a judicial authorization based on reasonable and probable grounds. Although concerns may have been voiced at times about the allegedly routine character of this process and the corresponding lack of effective control, such concerns are not warranted by the wording of the impugned provision and the nature of the duties imposed on the authorizing judge. As in the case of other forms of judicial authorization of investigative procedures, those duties must be discharged carefully in order to maintain standards consistent with the Charter principles governing searches and seizures or breaches of privacy interests by state action. (See, for example, R. v. Araujo, [2000] 2 S.C.R. 992, 2000 SCC 65, at paras. 29-39.)

[59] The judgment of our Court in Descôteaux also requires the authorizing judge to perform his or her own assessment of the need to issue a warrant. The applicant must demonstrate the absence of a reasonable alternative to the search. Warrants for search and seizure in law firms are not to be issued without a searching inquiry into the grounds and the alternatives, given the critically important nature of the solicitor-client privilege (Descôteaux, supra, at pp. 883-84 and at p. 890). In addition to reviewing the grounds advanced by the applicant, these rules imply that at the authorizing stage, the judge should take care to inquire into the nature of material to be searched and as to the possible existence of professional privilege.

[60] Section 488.1 which, as my colleague points out, was adopted in response to Descôteaux, kicks in at the next stage, after the issuance of the warrant. It is designed to govern its execution and to address the problems arising out of a search carried out in a very particular environment. The provisions of this section of the Criminal Code do not abrogate, though, the general principles governing the issuance of search warrants targeting law offices. They remain part of the legal framework which must be considered in any discussion of the constitutional validity of s. 488.1 under s. 8 of the Charter.

[61] Is this execution process so flawed that it should be found unreasonable and thus invalid under s. 8? For a variety of reasons, the judges in the courts below found it to be so. The alleged defects of this procedure are reviewed in the reasons of my colleague. They can be reduced to a few propositions. First, the procedure sets strict timetables which are unrealistic and are likely to lead to loss of privilege. Secondly, courts do not have any residual discretion to grant relief in cases where claims of privilege are not made in a timely manner. Therefore, the privilege may be lost through inaction of counsel without the courts’ being able to control or stop the release of confidential information. Thirdly, the requirement to “name” the client in order to raise a claim of privilege would itself breach the privilege. Finally, on top of all this looms the possibility of Crown access to the seized documents under s. 488.1(4).

[62] In my view, such propositions paint a picture of a procedure more concerned with destroying solicitor-client privilege than with protecting it. This is not, in reality, the case. It may be so if we disregard the safeguards built into the process of issuing search warrants as well as those which form part of the execution procedure in s. 488.1 itself. The acknowledgement of these safeguards which are inherent in the process requires a proper understanding of the role of counsel in the implementation of the provisions at issue and, perhaps more broadly, their duty as gatekeepers of our justice system, to act with diligence and competence.

A. Lawyers and Section 488.1

[63] I must confess to very mixed feelings of puzzlement, concern and disbelief when dealing with some of the arguments raised in order to challenge the impugned provision. In particular, I have great difficulty with a finding of unconstitutionality based on the assumption that lawyers will not act with diligence or competence. For a long time, I have thought that lawyers belong to a vibrant, active, perhaps at times aggressive profession. I still have a vision of Canadian law societies representing a body of well-trained and diligent lawyers, with perhaps a few black sheep, here and there, to be culled once in a while. I retain the hope that, when faced with a challenge to the interests of a client, past or present, they will rise to the occasion and do what needs to be done in a timely, diligent and competent manner. The argument made now would actually require Parliament to build safeguards into criminal legislation itself against negligence, inattention, slowness in action and sloppiness in management and organization. Any lesser standards would breach the relevant Charter guarantees.

[64] A finding of unconstitutionality based on the assumption that lawyers will not perform their duties with diligence and competence does not reflect the importance the jurisprudence of our Court attaches to the legal profession and to the essential role its members are expected to play in the administration of justice and the upholding of the rule of law in Canadian society. Legislative provisions such as s. 488.1 must be interpreted keeping such a context in mind.

[65] The role that lawyers play in society is so important that it has found its way into the Constitution of our country. At the time of an arrest, s. 10(b) of the Charter grants everyone the right “to retain and instruct counsel without delay and to be informed of that right”. The right to the effective assistance of counsel is viewed as one of the principles of fundamental justice, as Major J. said in R. v. G.D.B., [2000] 1 S.C.R. 520, 2000 SCC 22, at para. 24:

Today the right to effective assistance of counsel extends to all accused persons. In Canada that right is seen as a principle of fundamental justice. It is derived from the evolution of the common law, s. 650(3) of the Criminal Code of Canada and ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms.

Lawyers are viewed as playing a critical function in the administration of justice. They can be properly characterized as “officers of the court”, as Gonthier J. said in Fortin v. Chrétien, [2001] 2 S.C.R. 500, 2001 SCC 45, at para. 49:

Accordingly, the essential role that the advocate is called upon to play in our society cannot be overemphasized. Advocates are officers of the court. By their oath of office, they solemnly affirm that they will fulfill the duties of their profession with honesty, integrity and justice and will comply with the various statutory provisions governing the practice of that profession. . . .

[66] Some years before in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, McIntyre J. had emphasized, at p. 187, the reliance of the justice system on the existence of the legal profession and the competent discharge of its duties to its clients, the courts and society:

It is incontestable that the legal profession plays a very significant — in fact, a fundamentally important — role in the administration of justice, both in the criminal and the civil law. . . . I would observe that in the absence of an independent legal profession, skilled and qualified to play its part in the administration of justice and the judicial process, the whole legal system would be in a parlous state.

[67] Legislatures have granted law societies broad powers in order to monitor access to the profession and its exercise. The overriding purpose of these powers is to maintain the competence of lawyers and to make sure that their conduct reflects the high ethical standards expected of them. (See Law Society of British Columbia v. Mangat, [2001] 3 S.C.R. 113, 2001 SCC 67, at paras. 41-42, per Gonthier J.)

[68] Moreover, whether it is the pride or the bane of our civil and criminal procedure, Canadian courts rely on an adversarial system. An impartial and independent judge oversees the trial. He or she must make sure that it remains fair and is conducted in accordance with the relevant laws and the principles of fundamental justice. Nevertheless, the operation of the system is predicated upon the presence of opposing counsel. They are expected to advance often sharply conflicting views. They are also responsible for introducing evidence and presenting argument to the court, in a spirit of sometimes vigorous confrontation. Within limits, when the fairness and fundamental legality of the process may be at stake, courts do not attempt to second-guess the tactical decisions of lawyers, which will usually bind their clients, for better or for worse (G.D.B., supra, at paras. 26-35, per Major J.). An independent and competent Bar has long been an essential part of our legal system. For this purpose, lawyers have rights and privileges, but obligations flow from them. Section 488.1 is built upon this assumption.

B. The Structure and Application of Section 488.1

[69] As mentioned above, the discussion in this case has focussed on the application of s. 8 of the Charter. Our Court must inquire as to whether the process of execution established by s. 488.1 should be characterized as form of an unreasonable search and seizure within the meaning of s. 8 and the principles which have developed since Hunter v. Southam Inc., [1984] 2 S.C.R. 145. If the process is irretrievably flawed, no amount of trust in the future good behaviour and restraint of prosecutors and police will save it. On the other hand, if the legal structure is sound and allows for the protection of the rights at stake, the possibility of designing a better scheme for handling instances of error or of inappropriate action by the state and its agents will not render the provision at issue constitutionally void. The source of the unconstitutionality must be found in the legislation itself (Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] 2 S.C.R. 1120, 2000 SCC 69, at paras. 70-73 and 82, per Binnie J.; at paras. 203-5, per Iacobucci J. (dissenting in part)).

[70] In my view, the Crown does not attempt to save the legislation based on the promise or expectation that searches will be carried out in a careful manner by state agents, mindful of the constitutional values at stake. Rather, it advances the proposition that lawyers are the guardians of professional privilege and of the confidentiality of communications with their clients, past and present. The impugned legislation, which quite properly concerns searches in lawyers’ offices, establishes a procedure under which counsel will be given the opportunity, in the name and in the interest of their clients, to raise a claim of privilege. Given that the search takes place in particular surroundings, the key problem is whether, in such circumstances, the legislation provides adequate procedures and safeguards. The Crown advances the proposition that everything is in place to allow a lawyer who is aware of his or her obligations and of the ethical standards of his or her profession to raise the issue of privilege and confidentiality in a timely manner.

[71] The law does not shift the burden of preserving Charter rights to the bar. On the contrary, it establishes a well designed system, which acknowledges the existence of professional privilege, as a constitutionally protected right. The provisions of the Criminal Code put in place reasonable and adequate safeguards in order to protect it against illegal searches and seizures. Such provisions, as well as others dealing with other rights guaranteed by the Constitution, do not become unconstitutional merely because they may be misapplied by judges or lawyers or because counsel may fail to invoke them at the opportune moment or in an appropriate manner. The legislative scheme must be assessed on its own merits. In this context, given the nature of the safeguards in the provisions under review, I agree that, as long as society and courts can assume that lawyers will behave in a competent and ethical manner, the impugned law grants adequate protection to professional privilege and to the interests of the clients of law firms. It therefore meets the constitutional standards of s. 8 — as it would of s. 7 if it was engaged — save for s. 488.1(4). In enacting the impugned provision, Parliament adequately addressed the problems flagged by this Court in Descôteaux.

[72] As has been seen, the challenge to the validity of the impugned law turns on a few concerns. First, the time limit to raise the objection of professional privilege is too short and rigid. Rights could thus be lost through the inaction of counsel, with the courts’ lacking authority to grant relief to clients. No provision is made for notice to clients. Moreover, lawyers are compelled to name their client in order to claim privilege.

[73] These concerns paint a picture of a system which operates in a mechanistic way, with no room for flexibility or judicial discretion. They further reflect an underlying assumption that lawyers will not do what is necessary to protect their client’s Charter rights during a search of their offices. These concerns ground what amounts to an argument that legislation should be drafted, not in the expectation of the normal behaviour of the actors involved in the process, like counsel, but rather in the perspective of apprehended systemic failure.

C. Time Limits

[74] Lawyers face short time limits throughout the judicial process, including the initial raising of the claim of professional privilege in respect of some files. This is not the sole instance of a short procedural time limit in civil or criminal procedure. Counsel are aware of such constraints and usually factor them in the organization of their practice. Moreover, the picture of lawyers and staff passively standing by while the police rummage through the firm’s files, seizing them and carting them away, appears highly hypothetical, to say the least. Even the most incompetent lawyer or the most absent-minded legal assistant or law clerk would not confuse a squad of R.C.M.P. or Sûreté du Québec officers armed with a search warrant, barging into the reception room, with the pizza man. In any firm, large or small, this kind of event should ring a few bells and trigger some kind of a response. A reasonably competent lawyer should be expected to realize that a question of privilege could arise, that he or she would need to review some or all of the files sought by the police and should make a claim of privilege where necessary.

[75] Section 488.1 provides for a procedure to raise immediately the claim of privilege. The section also imposes a duty on the officers carrying out the seizure to make sure that the interested parties have an adequate opportunity to make a claim of privilege. In this respect, s. 488.1(8) states a key principle which should inform the application and interpretation of the provision at issue:

(8) 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).

Once a claim is made, the documents cannot be accessed by the seizing officer. If no adequate opportunity has been given to raise the privilege, the legality of the seizure and of the further use of the documents may be challenged as illegal and unreasonable.

[76] Provided a claim is made, either the Attorney General or the lawyer, in the name of the client, may apply to a court to set down a hearing in order to decide whether the documents should be disclosed (s. 488.1(3)). The motion must be made within 14 days from the time the documents are put under custody.

[77] Admittedly, this time limit is short. However, its brevity does not render it unconstitutional. No constitutional right to procrastination exists. Short time limits are common in criminal and civil procedure. They often appear necessary for a timely and efficient disposition of claims, whatever their nature may be. Competent lawyers are fully acquainted with these time limits; part of their work is to monitor them. Thus, lawyers are required to be on the alert and ready to move quickly when time limits loom large. It puts a burden on them, but one for which their training and their ethical standards have prepared them. Moreover, the procedures under s. 488.1 relate to criminal investigations where the interests of the administration of justice and of all parties concerned militate in favour of a quick and efficient resolution of the matter. The Charter itself views undue delay as undesirable, as s. 11(b) grants a constitutional right to be tried within a reasonable time. This constitutional principle imposes a significant burden on the Crown in the conduct of criminal prosecutions: R. v. Askov, [1990] 2 S.C.R. 1199; R. v. Morin, [1992] 1 S.C.R. 771. Short as it is, the 14-day time limit does not appear to have been designed as a trap for overworked or careless lawyers, but as a procedural constraint designed to speed things up and move them to a quick disposition. This provision establishes a procedure which allows a reasonably diligent and competent lawyer to bring the concerns about a possible breach of solicitor-client privilege before a court.

[78] In the parties’ argument on the validity of s. 488.1, much was made of the asserted rigidity of the time limits and the impossibility of the lawyer or the client obtaining relief if the motion is not brought in the 14-day period. My colleague seems to agree that this concern is overrated. Although s. 488.1 does not grant in so many words the power to extend the time limit, the trend of jurisprudential developments in respect of time limits and limitation periods has been to acknowledge the existence of a broad judicial power to grant relief or extend time limits. Under the most stringent tests, a showing of inability or impossibility to act within the stated time has been found sufficient to grant an extension or other appropriate relief. Considerations of fairness in the process remain determinative (Novak v. Bond, [1999] 1 S.C.R. 808, at para. 66, McLachlin J. (as she then was); M. (K.) v. M. (H.), [1992] 3 S.C.R. 6; Murphy v. Welsh, [1993] 2 S.C.R. 1069; Peixeiro v. Haberman, [1997] 3 S.C.R. 549, at para. 41; Sparham-Souter v. Town and Country Developments (Essex) Ltd., [1976] Q.B. 858 (C.A.), at p. 867; Construction Gilles Paquette Ltée v. Entreprises Végo Ltée, [1997] 2 S.C.R. 299).

[79] The existence of such a power should put to rest the concern about the lack of notice to clients and the difficulties a lawyer may face when tracking down a client in such circumstances. First, it must be observed that the procedure is targeted at a professional who is or was the agent or adviser of a client. Also, the identity and whereabouts of the client are sometimes better known to the lawyers. In such a context, the failure to include a requirement of notice to the client does not amount to a flaw. The impugned law merely provides for a mechanism which will allow the information to reach the client if the lawyer discharges his or her professional obligations with a reasonable degree of diligence and competence. Moreover, the procedure under s. 488.1 is not inflexible. If the lawyer cannot reach the client within the 14-day time limit or is concerned that this may prove difficult, the motion may so state and the court may grant postponements and provide for special forms of service or notice of the proceedings. If all else fails, as discussed above, courts may grant relief from the operation of the time limit itself, in the appropriate circumstances, either to the lawyer or to the client.

D. Naming the Client

[80] The parties who challenge the constitutionality of s. 488.1 submit that the procedure established by the impugned provision is also flawed because it requires the lawyer to identify the client by their name, which in itself would breach the privilege. As explained by my colleague, names of clients are not always privileged. Privilege in respect of names of clients appears to be more of an exception than a general rule. But in cases where the identity of the client itself would be considered as privileged, it is necessary to inquire as to whether s. 488.1(2) actually requires that the lawyer identify the client. It is one possible interpretation. Nevertheless, as the Attorney General for Ontario submitted in his factum, naming does not necessarily amount to identifying by name. The name used may not be the true or full name of an individual. The impugned provision seeks to avoid broad claims of privilege. It requires that claims of privilege be raised in respect of specific files and clients, which must be designated in some manner. Nothing would prevent the lawyer from stating that client Z has a right to the protection of privileged information in respect of file X, for given reasons articulated in the motion. At a subsequent stage of the proceedings, the question of the confidentiality of names and the measures necessary to protect it would fall to be decided by the court. Given a proper and reasonable interpretation, the naming requirement does not breach any protected constitutional right or interest.

E. Judicial Discretion

[81] In their constitutional arguments, some of the parties have emphasized the lack of judicial discretion to prevent or remedy a breach of professional privilege. When viewed as a whole, the system provides for a substantial degree of judicial discretion and intervention in order to control or prevent the communication of privileged information.

[82] As mentioned above, s. 488.1 lays down a set of procedures for the execution of warrants authorized by a member of the judicial branch. Before a warrant issues, judicial discretion must be exercised. Then, in the application of s. 488.1 itself, the officer carrying out the seizure must give a reasonable opportunity to the lawyers to raise a claim of privilege. This obligation represents a fundamental requirement which informs the application of the whole section. Its breach might be raised at the stage of a motion under subs. (3). Further, subs. (8) forbids any access to the material unless the opportunity has been given to invoke the privilege. When seized with a motion under subs. (6) to turn over the material to the Crown, a judge retains the power to inquire as to whether an opportunity has been given under subs. (2). Without straining the scope and intent of this section of the Criminal Code, such an interpretation acknowledges that the proper execution of the duty imposed on the seizing officer under subs. (2) constitutes a condition precedent to the application of the procedure designed to give the Crown access to the material.

[83] Better or different procedures could be imagined and designed. As it stands, with the exception of subs. (4), s. 488.1 as a whole conforms with the requirements of s. 8 of the Charter. It does not allow for unreasonable searches and seizure. It certainly does not violate the principles of fundamental justice within the meaning of s. 7 of the Charter.

[84] Nevertheless, I agree with Arbour J. that subs. (4) is unconstitutional. With perhaps the best of intents, and despite the stated desire to assist the court, it may lead to improper and premature disclosures of confidential information. It should be struck down and excised from the section, without disrupting the general procedural scheme, which remains valid, in my opinion.

IV. Conclusion

[85] For these reasons, I find s. 488.1 valid, save in respect of subs. (4). I would thus allow the appeals in part in Lavallee and Fink. In White, I would dismiss the appeal and allow the cross-appeal in part.

[86] The constitutional questions should be answered as follows:

Does s. 488.1 of the Criminal Code, R.S.C. 1985, c. C-46, infringe s. 7 of the Canadian Charter of Rights and Freedoms?

Answer: No.

If so, is the infringement reasonable and demonstrably justified in a free and democratic society under s. 1 of the Charter?

Answer: No need to answer.

Does s. 488.1 of the Criminal Code, R.S.C. 1985, c. C-46, infringe s. 8 of the Canadian Charter of Rights and Freedoms?

Answer: No, except subs. (4).

If so, is the infringement reasonable and demonstrably justified in a free and democratic society under s. 1 of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b

Lavallee, Rackel & Heintz v. Canada (Attorney General); White, Ottenheimer & Baker v. Canada (Attorney General); R. v. Fink, 2002 SCC 61

Case Summary