Festing v. Canada (Attorney General), 2003 BCCA 112 (CanLII)
[27] We would emphasize, however, that we agree with counsel for the intervenor and for the appellants that the legal protection afforded solicitor-client privilege does not begin and end at the door of a law office. Rather, those applying for, issuing and executing search warrants should be alive to ensuring solicitor-client privilege is protected, to the greatest extent possible, whenever the circumstances so warrant. For example, if there is no reasonable basis to expect that documents protected by solicitor-client privilege may be found at a particular location at the time a search warrant is granted, but it becomes apparent to those executing the warrant that documents that may be protected by solicitor-client privilege are contained in those premises, steps should be taken at that time to ensure that the continuing search and seizure accords as closely as possible with the Lavallee guidelines. There may be exigent circumstances which make this impossible, but, short of such circumstances, appropriate protective measures in line with those set out in Lavalleeshould be taken.
[28] In coming to these conclusions, we share the view of Madam Justice Arbour, speaking for the Court, at para. 49 of Lavallee:
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.
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