Solicitor-Client Privilege of Things Seized (Re), 2019 BCSC 91
Searches and Solicitor-Client Privilege
[33] The principles that underscore the Court’s reasons in Lavallee are relevant in all cases concerning solicitor-client privilege: see Lavallee para. 49.
[49] … 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.
[34] This statement does not mean the full compliment of enumerated guidelines apply whenever solicitor-client privilege is claimed over materials in the searched location. Certain of the Lavallee guidelines will be constitutionally required in some circumstances, and “unnecessary” in others: see e.g. A.G. v. L.S.U.C. at para. 41. Courts must apply the guidelines based on the facts of the case. Lavallee does not prescribe a “one size fits all” application, but a principled approach. At para. 49, the Court writes:
[49] … 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.
[35] “Law office” searches attract mandatory Lavallee procedures. In Festing #2, the court expanded the term “law office” to include “place where privileged documents may reasonably be expected to be located”: Festing #2 at para. 24. Searches of law offices, or places akin to law offices, must adhere to the procedures set out in Lavallee.
[36] The court gave examples of places akin to law offices falling within the expanded definition, including: a lawyer’s home, a lawyer’s office in multidisciplinary business premises, offices of in-house counsel for a business, or the storage facility where lawyers store their files: Festing #2 at para. 24. This list is not exhaustive. The court said, “… 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 (e.g. computer hard drives and disks) continues to expand and diversify”: Festing #2 at para. 24, [parenthesis in original]. In R. v. A.B., 2014 NLCA 8 [R. v. A.B.], the court upheld the lower court’s quashing production orders for a lawyer’s cellular and landline phone records from third party telecom companies because the records were a place of document storage related to the lawyer’s practice, and search did not adhere to the mandatory Lavallee procedures.
[37] The applicant submits that notwithstanding the expanded definition, the reasonable expectation that privileged documents may be located in the searched place remains grounded in a lawyer’s practice of law, based on the nature of his or her practice, places of practice and storage, among other things.
[38] The respondents and intervenor contend that the searched premises fall into the extended definition of “law office”. The respondents and the intervenor submit that if it becomes apparent that the subject of the search has consulted a lawyer and is likely storing privileged material concerning solicitor-client correspondence on his electronic device, a reasonable expectation exists within the meaning of Festing #2 at para. 27.
[39] A reasonable expectation that privileged materials are at the searched location is not limited to a reasonable expectation at the time the warrant was issued. A “reasonable expectation” can form even after the search has begun to trigger Lavallee requirements: see Festing #2 at para. 27.
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 Lavallee should be taken.
[40] In order to establish a reasonable expectation, there must be more than a mere assertion that there might be some solicitor-client privileged material on the premises: see e.g. R. v. Shah, 2015 ONSC 4853 at para. 20 [Shah]. In Shah, police seized a cell phone from an alleged drug dealer. The accused stated the cellphone might contain solicitor-client privileged materials. The court in Shah, wrote:
[20] However, in the case now before me, it is established that Simon King was Mr. Shah’s lawyer and it is also established that there were actual communications between Mr. Shah’s phone and a phone number set out on Mr. King’s business card. In my view, that is sufficient to give rise to a concern and is sufficient to require that the utmost care be taken to ensure that any privilege is protected. It is important to bear in mind the cautionary words of the Supreme Court in Lavalee (at para 24) as follows:
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.
[21] Mr. Morris was candid in conceding that his client is not able to say that his only relationship with Mr. King was a solicitor and client one, such that any communications between them were necessarily related to that relationship. They had conversations about various things, some of which were related to the fact that Mr. King acted as legal counsel for Mr. Shah, and some of which were not. Without reviewing the content of the phone, it is not possible to say whether the privilege will arise. However, in my view, these circumstances require that we err on the side of caution.
[41] Where the Court finds solicitor-client privilege exists, the Court will canvas how Lavallee principles should apply. This does not require strict application of each of the enumerated Lavallee guidelines. Solicitor-client privilege must remain “as close to absolute as possible”: Lavallee at para. 36. Different procedures are required to accomplish this goal depending on the context.
Search Procedures that “Minimally Impair” Solicitor-Client Privilege
[42] In Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44 at para. 9 [Blood Tribe], Binnie J. cited the following regarding what is meant by the term “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 (CanLII), at para. 35, quoted with approval in Lavallee, Rackel & Heintz v. Canada (Attorney General), [2002] 3 S.C.R. 209, 2002 SCC 61 (CanLII), at para. 36.)
[Emphasis added]
[43] Courts employ the standard of “minimal impairment” when determining the “reasonableness of state encroachments on solicitor-client privilege” during a search: see Lavallee at paras. 36-37.
[44] In determining “minimal impairment” in searches and seizures of electronic data over which solicitor-client privilege claimed, courts consider the persons and processes appropriate for identifying and isolating the privileged material, and where and how the privileged material should be stored.
Persons and Processes to Identify Privileged Materials
[45] In 9229-0188 Québec Inc. (“Saramac”) et al. v. Director of Criminal and Penal Prosecutions (13 June 2016), Montreal 700-26-020291-134 et al. (Que. S.C.) [Saramac], the Surete du Québec (“SQ”) seized data held on computer servers located at the respondent’s offices.
[46] The issue of appointing of independent counsel to oversee the search process was not a live issue in Saramac. In-house lawyers and notaries worked at the respondent’s offices: submitted by applicant; Agence du revenue du Québec c. 9229-0188 Québec Inc., 2018 QCCA 1298 at para. 3 [no English translation available]. As required in Québec when search warrants are executed in lawyers’ or notaries’ workplaces, a Barreau du Québec representative was present at the time of the search and supervised the search to ensure that all records potentially protected by the civil law advocates’ professional secrecy obligations, akin to common law solicitor-client privilege, were identified and excluded from seizure. The applicant and respondent agreed that privileged materials were likely to be found in the searched location in connection with the legal services provided there. The court appointed the independent legal officer to oversee the process ensure the Lavallee requirements were met: Saramac at para. 52.
[47] As distinct from the oversight issue, Bourque J. rejected the option to appoint an amicus curiae to review the seized records and assert privilege: Saramac at paras. 43-44). Bourque J. said (translated) the privilege holder, i.e, the respondent, is in the best position to assert privilege because the “communications are theirs, they know where the communications come from and are familiar with their nature and contents”: Saramac at para. 45. An amicus curiae, analogous to a neutral third party referee is “a needless duplication of effort” and “complicates and puts an unnecessary burden on the procedure”: Saramac paras. 43-45.
[48] A third party referee in law office searches is useful because the seized records may concern many different clients, each with their own claim to privilege. Where the privilege concerns just one client and its lawyer, the need for some species of third party referee is diminished: see e.g. Saramac paras. 47-64.
Persons and Procedures for Isolating Privileged Materials
[49] The court in Saramac found that the SQ’s technology division (“SQ TD”), the SQ’s operationally-independent forensic technology unit, was the appropriate body to handle the master copies, which contained solicitor-client privileged materials. An independent IT technician was not necessary. The SQ TD met the constitutional requirements, the reasons being:
1. The SQ TD had operational independence from the SQ investigation team, including separate office space with restricted access: Saramac, para. 16. The evidence showed minimal risk that the privileged documents in the master copy might accidently be revealed: Saramac paras. 105, 108-109 and 111-117. Evidence established that during the SQ TD’s handling of the master copies, no information regarding the potentially privileged records would be available to the seizing authority, i.e., SQ: Saramac at para. 89.
2. The SQ TD were required to take an oath of confidentiality.
3. The SQ TD had technical expertise to ensure the data was not compromised.
4. The processes available to the SQ TD meant that they did not have to read or access the contents of the potentially privileged materials in order to process and isolate the privileged materials: Saramac, paras. 84-85, 91-92. According to the court in Saramac, third parties may be required when the seizing authority seeks access to the content of the privileged materials, or the technicians need to read the privileged documents in order to do their work: Saramac at paras. 96-98.
[50] The SQ TD handled the electronic data for the purpose of creating databanks of files to perform keyword searches, linking the data, and classifying the records’ properties: Saramac at paras. 82-83. The aforementioned safeguards were sufficient for these processing tasks.
[51] In Shah, police seized a cell phone from an alleged drug dealer. The accused claimed solicitor-client privilege over the data stored on the cellphone. At para. 25, the court inquired into the data-copying process in that case and concluded that “in the course of doing the copying, some of the material in the phone would inevitably be seen”: Shah at para. 27. Based on the inadequate copying technologies available, a third party technician was appointed to process and copy the data. This conclusion was based on the specific tools, technology, and processes used by the police forensic unit. See also R. v. A.B. at paras. 46-47.
[52] Part of this application turns on what is and what is not “privileged” information. Ms. Brewer deposes in her affidavits that in order to create the keyword search, she would need the names of senders and recipients of the solicitor-client correspondence containing privileged information. If names of senders and recipients are protected by solicitor-client privilege, she and her team will be viewing privileged material. This would be unacceptable.
[53] The applicant says that the name of a law firm or lawyer the respondents communicated with is not privileged, as a communication that reveals the identity of a law firm is not a confidential communication made for the purpose of giving or receiving legal advice: Canada (Minister of National Revenue) v. Revcon Oilfield Constructors Inc., 2015 FC 524 at para. 25. The respondents submit the fact that a client consulted a lawyer, the name of the lawyer, and the lawyer’s practise area may indirectly reveal the subject matter of the legal advice: Lavallee at para. 28; Canada (Attorney General) v. Chambre des notaires du Québec, 2016 SCC 20 at para. 74; Minister of National Revenue v. Welton Parent Inc., 2006 FC 67 at paras. 84-85.
[54] In R. v. A.B., the court explained the status of electronic communication metadata linked to solicitor-client correspondence. Although concerning telephone correspondence, the types of metadata discussed exist in other varieties of electronic correspondence. The court in R. v. A.B. at para. 43 said:
[43] … To the extent, however, that there is any doubt or confusion regarding the breadth of privilege and its application to metadata, as opposed to content, associated with the Telus Order, allow me to clarify that both the metadata (which provides information about other data including the telephone numbers that sent and received text messages and made or received phone calls as well as the times the calls and messages were made) and the content of the text messages should have been presumptively treated as subject to solicitor-client privilege unless and until decided otherwise by a justice of the Trial Division.
Storage of Identified Solicitor-Client Privileged Materials
[55] After the privileged materials have been identified and isolated from the other seized materials, questions remain as to how the originals, master copies, or complete set, as the case may be, should be stored.
[56] In Saramac, master copies of seized documents in electronic format were placed under seal and stored at the Québec Superior Court Registry: see Saramac at para. 3.
[57] A.G. v. L.S.U.C. is instructive on how solicitor-client privileged materials should be stored after they are identified and isolated. The court articulated the guiding principles at para. 36:
Courts must always consider, as the highest priority, the public interest and the need for public confidence in the administration of criminal justice. (R. v. Robillard (1987) 1986 CanLII 4687 (ON CA), 28 C.C.C. (3d) 22 at 27 and 28).
And at para. 38:
38 Any protocol for the storage of the seized devices must be as reliable and trustworthy as possible. The public confidence in the administration of the criminal justice system relies on the respect for the solicitor-client privilege which must be “as close to absolute as possible.” R v. McClure, 2001 SCC 14 (CanLII), [2001] 1 S.C.R. 445.
[58] Tax offences can be quasi-criminal or criminal in nature.
[59] In A.G. v. L.S.U.C., as in the current case, a number of options for secure storage of privileged material were before the court. The court had the option to order storage at the Examiner’s National Discovery Center or the secure police evidence locker. The court ordered the complete set of seized originals be stored at the independent secured system, available only to the Examiner: A.G. v. L.S.U.C. at para. 41.
41 The Attorney General does not identify any specific concerns with the Law Society's alternate proposal to store the seized devices in the Examiner's National Discovery Centre in a secured system, available only to him. The Examiner will have already applied programs to the seized devices and captured all of their images. He is not a member of a law enforcement agency and no member of a law enforcement agency has access to the storage of the seized devices. This is the preferable option for the storage site. While there is no system that is perfectly secure, this proposal goes a long way to reducing the consequences of any inadvertent breach of the privilege. Consequently, it will go a long way to ensuring that reasonable members of the public, including clients of this defendant, do not lose confidence in the administration of the criminal justice system. Although this proposal would be unnecessary in many other law office searches, the particular circumstances of this case and the admonition from Lavallée to use "all efforts to protect" the privilege persuade me to accept the Law Society proposal.
[60] Even though disparity between the storage options in A.G. v. L.S.U.C. were more pronounced than on the current application before the Court, the principle provides the Court will order the storage option that minimally impairs solicitor-client privilege and maintains confidence in the administration of justice.
Discussion
[61] By the end of the hearing, the parties had largely abandoned any arguments as to cost efficiencies of the various options before the Court. The cost associated with appointing third parties to assist in the protection of solicitor-client privilege will not bear on the analysis if the circumstances require persons be appointed.
Person to Identify Privileged Material
[62] Regarding the identification process, the respondents and their counsel are best suited to identify solicitor-client privileged materials.
[63] Independent referees have utility in searches of law offices with multiple clients. In those searches, there is a potential for many different claims of solicitor-client privilege. All clients must be notified so they can assert their respective, potential claims. The independent referee may help to facilitate this process and if clients cannot be notified or contacted, asserts privilege on their behalf: see e.g. Lavallee at para. 49 at “7.”. The respondents and their counsel have demonstrated that they are capable of identifying solicitor-client privileged materials. Indeed, they have done so over a large number of the documents already, as shown in the list attached by the applicant at its “Appendix B”. The respondents have asserted privilege on their own behalf in the past and are presumably capable of doing so, together with their counsel, moving forward. They do no require the assistance of an independent referee.
[64] Independent referees are also valuable to “look over the shoulder” of an operationally-separate forensics department of the investigating state institution. In these situations, the independent referee ensures the identification and isolation is proceeding lawfully to protect solicitor-client privilege and affirms the same to satisfy the court: see e.g. Saramac at paras. 52, 82-83. As will be explained below, this arrangement is not required in the present case.
[65] The parties largely agree that the respondents and respondents’ counsel are best suited to review a copy of the materials on the seized electronic storage devices and identify which of those are privileged, later giving that copy to the CFA team. The parties largely agreed that no independent referee is required.
Person and Process to Conduct Isolation Process
[66] Past cases suggest that an operationally-independent forensics department with technical expertise may be appropriate to isolate solicitor-client privileged material. However, the tools used in the isolation process must allow the forensics team to do their work without reading the content of the privileged material. Forensics departments may use keywords searches to isolate solicitor-client privileged materials. Keywords that disclose privileged information are not acceptable, e.g. if the name of a lawyer or firm divulges that subject matter of the legal advice sought.
[67] I agree with the submission of the intervenor, the LSBC: appointing an independent technician with expertise in forensic computing (“the independent technician”) to perform the isolation process would allow for a secure, efficient, and reliable separation of solicitor-client privileged materials.
Aucun commentaire:
Publier un commentaire