Celui qui exécute un mandat de perquisition doit protéger autant que possible le privilège avocat-client

R. v. Ciarniello, 2004 CanLII 23110 (ON SC)

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[77]        Det. Cst. Scherer was asked why he did not make some reference to the privilege claim in the Information to Obtain.  He indicated it was an oversight on his part.  He did not indicate that he was misled by the statement prepared by Cst. Lebus.  I am skeptical of Det. Cst. Scherer’s evidence on this point.  In any event, it seems that Det. Cst. Scherer made no inquiries about the solicitor-client privilege issue that might have led to the discovery of the true situation, even though the “will say” statement mentioned a claim of privilege, albeit in a misleading fashion.  As noted in Festing v. Canada (Attorney General) 2003 BCCA 112 (CanLII), (2003), 172 C.C.C. (3d) 321 (B.C. C.A.) at 330-331, “... those applying for, issuing and executing search warrants should be alive to ensuring that solicitor-client privilege is protected, to the greatest extent possible, whenever circumstances so warrant.”  The circumstances here called for care, which was remarkably absent.