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dimanche 16 mars 2025

La protection du secret professionnel s'applique indépendamment de l'endroit où un document privilégié peut raisonnablement se trouver

R. v. A.B., 2014 NLCA 8



Applicable Solicitor-Client Privilege Principles

 

[21]        The Supreme Court of Canada in Lavallee set out the common law principles to be considered by a judge or justice when issuing search warrants applicable to law offices; Justice Arbour, writing for the Court at paragraph 49, stated the following principles that are relevant to this case:

 

1.        No search warrant can be issued with regards to documents that are known to be protected by solicitor-client privilege.

 

2.        Before searching a law office, the investigative authorities must satisfy the issuing justice that there exists no other reasonable alternative to the search.

 

3.        When allowing a law office to be searched, the issuing justice must be rigorously demanding so to afford maximum protection of solicitor-client confidentiality.

 

4.        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. 

 

5.        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.

 

6.        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.

 

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.  The prosecuting authority can only inspect the documents if and when it is determined by a judge that the documents are not privileged.

 

[22]        The protection demanded by Lavallee is afforded because of the central importance of solicitor-client privilege in Canadian law.  In Canada (Privacy Commission of Canada) v. Blood Tribe Department of Health, 2008 SCC 44, [2008] 2 S.C.R. 574, at para. 9, Binnie J. stated:

 

Solicitor-client privilege is fundamental to the proper functioning of our legal system.  The complex of rules and procedures is such that, realistically speaking, it cannot be navigated without a lawyer’s expert advice.  It is said that anyone who represents himself or herself has a fool for a client, yet a lawyer’s advice is only as good as the factual information the client provides.  Experience shows that people who have a legal problem will often not make a clean breast of the facts to a lawyer without an assurance of confidentiality “as close to absolute as possible”:

 

[S]olicitor-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.

 

(R. v. McClure, [2001] 1 S.C.R. 445, 2001 SCC 14, at para. 35, quoted with approval in Lavallee, Rackel & Heintz v. Canada (Attorney General)[2002] 3 S.C.R. 209, 2002 SCC 61, at para. 36.)

 

It is in the public interest that this free flow of legal advice be encouraged.  Without it, access to justice and the quality of justice in this country would be severely compromised.  The privilege belongs to the client not the lawyer.  In Andrews v. Law Society of British Columbia1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143, at p. 188, McIntyre J. affirmed yet again that the Court will not permit a solicitor to disclose a client’s confidence.

 

[23]        This privilege arises upon the first contact between a prospective client and a lawyer:

 

…the scope of the privilege has been described as attaching to all communications made within the framework of the solicitor-client relationship which arises as soon as the potential client takes the first steps, and consequently even before the formal retainer is established.

 

(Descôteaux v. Mierzwinski, 1982 CanLII 22 (SCC), [1982] 1 S.C.R. 860, at p. 893 affirmed in Pritchard v. Ontario Human Rights Commission, 2004 SCC 31, [2004] 1 S.C.R. 809, at para. 16.)

 

[31]        The Lavallee principles have been applied to “any place where privileged documents may reasonably be reported to be located,” see Festing v. Canada (Attorney General), 2003 BCCA 112, 11 B.C.L.R. (4th) 83, at para. 24; see also R. v. Qoneshi, 2006 ABQB 14, 54 Alta. L.R. (4th) 357; R. v. Murtha, 2009 NSSC 342, 286 N.S.R. (2d) 122, at para. 16.  In Festing, the British Columbia Court of Appeal explained that the privilege can apply to a lawyer’s home, a lawyer’s office in multi-disciplinary business premises, the office of in-house counsel for a business, and storage facilities where lawyers store their files.  The Court concluded at paragraph 24 that it:

 

…offers these examples as just that — examples of places where the Lavallee guidelines would apply.  Counsel agree that there is little utility in attempting to define all such places since the practice of law, and the manner in which [lawyers] store client information (for example, on computer hard drives and disks), continue to expand and diversify.

 

[32]        The Court in Festing also held that section 488.1(1) of the Code which had previously been struck down by the Supreme Court in Lavallee had nevertheless defined a “document” eligible for privilege protection as follows:

 

[25]   …Documents is the word used in the Lavallee guidelines.  Further, the word "document" was given an expansive definition in s. 488.1(1) (as it then was) by reference to s. 321 of the Code which provides, in part:

 

"document" means any paper, parchment or other material on which is recorded or marked anything that is capable of being read or understood by a person, computer system or other device, and includes a credit card, but does not include trade marks on articles of commerce or inscriptions on stone or metal or other like material;

 

We would adopt that definition of "document" as applying in our expanded definition of the words "law office" for the purpose of applying the Lavallee guidelines.

                                                                                      (Emphasis added.)

 

[33]        Finally, that Court concluded:

 

 [27]   …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.

 

                                                                             (Emphasis added.)

 

[34]        Consequently, I conclude that it is the nature of the communications and the solicitor-client relationship that give rise to the need to protect a possible claim of solicitor-client privilege and not simply a particular physical location such as a lawyer’s office.  The Trial Division judge did not err in finding that solicitor-client privilege was engaged even though the orders were not directed at the respondent’s law office but rather at the use of cellular telephone and landline phone equipment belonging to the respondent and her brother, a lawyer, that was suspected of being utilized by the respondent’s client at the respondent’s residence over a two-and-a-half-day period. 

 

[48]        The Lavallee principles provide that the appropriate time to give notice to legal counsel or the Law Society when a third party is about to transfer potentially privileged documents or data to the police to enable oversight of the seizure and sealing of the documents or data is prior to execution of the production order.  The police are not permitted to see any of the material that is the subject of a production order before the court decides the claims of privilege in an inter partes vetting process.  Oversight at the execution of the production order by either the lawyer or the Law Society representative is crucial to ensure the protection of solicitor-client privilege.

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