La procédure Garofoli et la discrétion judiciaire permettant d'annuler un mandat de perquisition par ailleurs valide

R. v. Paryniuk, 2017 ONCA 87

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[42] A trial judge who has to determine whether a search was authorized by law must decide whether the conditions precedent to the search authority on which reliance is placed have been satisfied. To do this, the trial judge conducts a hearing -- a Garofoli application. At that hearing, the judge examines the material before the authorizing judge or justice, material which may differ from the original because portions have been redacted, for example, to protect confidential informer privilege. Evidence at the Garofoli hearing may persuade the trial judge that parts of the original material should be excised or amplified. In the end, the record becomes fixed for review purposes.

[43] What the trial judge is required to decide on the Garofoli application is whether, based on the record before the authorizing judge or justice, as amplified on the Garofoli review, the authorizing judge could have granted the enabling order: Garofoli, at p. 1452 S.C.R. The judge must decide whether, after excision and amplification, there was reliable evidence which might reasonably be believed on the basis of which the search authority could have been issued: Araujo, at paras. 51, 54; R. v. Campbell, [2011] 2 S.C.R. 549, [2011] S.C.J. No. 32, 2011 SCC 32, at para. 14; R. v. Morelli, [2010] 1 S.C.R. 253, [2010] S.C.J. No. 8, 2010 SCC 8, at para. 40. The onus of establishing that the search authority was improvidently granted rests upon the accused: Campbell, at para. 14; Morelli, at para. 131; [page332] Quebec (Attorney General) v. Laroche, [2002] 3 S.C.R. 708, [2002] S.C.J. No. 74, 2002 SCC 72, at para. 68.

[44] Prior to Garofoli, fraud, non-disclosure, misleading evidence and new evidence were prerequisites to review of the enabling order: Garofoli, at p. 1452 S.C.R. But thereafter, the "sole impact" of the same things was to determine whether there remained any basis for the decision of the authorizing judge or justice: Garofoli, at p. 1452 S.C.R. See, also, Araujo, at para. 51; Bisson, at p. 1098 S.C.R.

[45] The assessment required by Garofoli is contextual. What is involved is an analysis to determine whether there remains sufficient reliable information upon which the search authority could be grounded. This approach appropriately balances the need for judicial finality and the need to protect systems of pre-authorization: Araujo, at para. 54. In this analysis, facts originally omitted are also considered: Morelli, at para. 60.

[46] Essential features of the Garofoli application are excision and amplification. Erroneous information is excised from the ITO and disregarded in determining whether the essential evidentiary predicate remains: Araujo, at para. 58; Campbell, at para. 14; Morelli, at para. 41. But errors made in good faith may be corrected by amplification through the introduction of evidence that was available when the ITO was prepared: Morelli, at paras. 41-43.

[47] A final point concerns the standard against which alleged errors or omissions in the ITO are tested. The affiant's assertions are tested against the affiant's reasonable belief at the time the ITO was composed, not the ultimate truth of the facts stated: World Bank Group v. Wallace, [2016] 1 S.C.R. 207, [2016] S.C.J. No. 15, 2016 SCC 15, at para. 122.

The discretion to set aside otherwise valid search authority

[48] The foundational authority that waded into the procedural quagmire and dredged up a single review mechanism -- Garofoli -- makes no reference to any residual discretion to set aside a search authority otherwise found valid. Not only does Garofoli fail to make a place for such a residual discretion, in express terms or by necessary implication, it also tends to foreclose such discretion by assigning the sole impact of fraud, non-disclosure, misleading evidence and new evidence to a determination of whether there continues to be any basis for the decision of the authorizing judge or justice: Garofoli, at p. 1452 S.C.R.

[49] A decade after Garofoli, the standard of review for issuance of authorizations to intercept private communications returned to the Supreme Court of Canada in Araujo. [page333]

[50] In Araujo, the trial judge found that investigators had acted in bad faith. He also found that the affidavit had failed to establish the investigative necessity requirement of s. 186(1)(b) of the Criminal Code, R.S.C. 1985, c. C-46. As a result, he set aside the authorization. The trial judge then went on to exclude all the evidence, directly or indirectly originating from the authorization, on the ground that the police had acted in bad faith and that the courts could not condone such conduct by admitting its evidentiary fruits: Araujo, at para. 10.

[51] The British Columbia Court of Appeal unanimously set aside the acquittals entered at trial: R. v. Araujo, 1998 CanLII 6287 (BC CA), [1998] B.C.J. No. 1558, 127 C.C.C. (3d) 315 (C.A.). The court rejected the trial judge's application of the standard of review to the enabling authorization and of the investigative necessity test.

[52] The Supreme Court of Canada considered first whether the contents of the supportive affidavits, as amplified on the review, satisfied the investigative necessity requirement of s. 186(1)(b). The court then turned its attention to the standard of review to be applied to wiretap authorizations, including amplification. The court reiterated its prior injunction against rehearing and emphasized the contextual nature of the inquiry to determine whether, after excision and amplification, there remained some evidence that might reasonably be believed on the basis of which the authorization could have issued: Araujo, at para. 51.

[53] After referring to some authorities that emphasized the need for a contextual analysis in authorization review, the court continued, at para. 54:

The authorities stress the importance of a contextual analysis. The Nova Scotia Court of Appeal, while reviewing the cases from our Court cited above, explains this in a judgment dealing with problems arising out of errors committed in good faith by the police in the material submitted to the authorizing justice of the peace:

These cases stress that errors, even fraudulent errors, do not automatically invalidate the warrant.

This does not mean that errors, particularly deliberate ones, are irrelevant in the review process. While not leading to automatic vitiation of the warrant, there remains the need to protect the prior authorization process. The cases just referred to do not foreclose a reviewing judge, in appropriate circumstances, from concluding on the totality of the circumstances that the conduct of the police in seeking prior authorization was so subversive of that process that the resulting warrant must be set aside to protect the process and the preventive function it serves.

(R. v. Morris (1998), 1998 NSCA 229 (CanLII), 134 C.C.C. (3d) 539, at p. 553) [page334]

An approach based on looking for sufficient reliable information in the totality of the circumstances appropriately balances the need for judicial finality and the need to protect prior authorization systems. Again, the test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued, not whether in the opinion of the reviewing judge, the application should have been granted at all by the authorizing judge.

(Emphasis in original)

[54] The appellant invokes [Araujo, at para. 54] "The cases just referred to do not foreclose a reviewing judge, in appropriate circumstances, from concluding on the totality of the circumstances that the conduct of the police in seeking prior authorization was so subversive of that process that the resulting warrant must be set aside to protect the process and the preventive function it serves" (emphasis in original) as authority for the order he seeks. The passage in Morris is obiter, since the court was dealing with errors committed in good faith. And the reference to Morris in the Supreme Court of Canada appears to be as illustrative of the need for a contextual analysis in authorization review, not as an express adoption of the residual discretion to set aside an authorization for conduct subversive of the pre-authorization process.

[55] The authority described in Morris appears limited to fraudulent and deliberate errors. It requires a contextual analysis, an examination of all the circumstances. And a conclusion that the police conduct was so subversive of the pre-authorization process that the search authority issued must be set aside to protect the process and the preventative function it serves.

[56] The Morris court summarized this principle in this way, at pp. 568-69 C.C.C.:

Fraudulent or deliberately misleading material in the Information does not automatically invalidate the warrant. However, it may have this effect if the reviewing judge concludes, having regard to the totality of the circumstances, that the police approach to the prior authorization process was so subversive of it that the warrant should be invalidated. In addition, fraudulent and deliberately misleading material should be excised from consideration[.]

[57] This passage suggests that where the police approach to the prior authorization process was so subversive of that process, the warrant should be invalidated and the fraudulent and deliberately misleading material excised from consideration. Excision seems redundant if the warrant has been invalidated because of the subversive nature of the police conduct.

[58] Despite its reference to the decision in Morris, including the passage about a residual discretion, the Araujo court made it [page335] clear that an approach based on looking for sufficient reliable information in the totality of the circumstances appropriately balances the need for judicial finality and the need to protect prior authorization systems: Araujo, at para. 54.

[59] In British Columbia, the courts recognized a similar authority to quash a search warrant where the issuing judicial officer had been intentionally misled. The search authority is quashed to avoid the corruption of the judicial process that would result if deliberate efforts to mislead judicial officers in the discharge of their judicial functions could nonetheless lead to valid judicial orders: see, e.g., Sismey, at p. 285 C.C.C.

[60] In subsequent cases, however, the British Columbia Court of Appeal has acknowledged that Sismey has been overtaken by Garofoli and Araujo: R. v. Bacon, [2010] B.C.J. No. 453, 2010 BCCA 135, 285 B.C.A.C. 108, at para. 23, leave to appeal to S.C.C. refused [2011] 1 S.C.R. v, [2010] S.C.C.A. No. 213.¹ In the result, the Bacon court concluded the trial judge's role in reviewing the validity of a search warrant is to consider whether the material filed in support, as amplified on review, could support the issuance of the warrant. Evidence of fraud, material non-disclosure or misleading information are all relevant to this inquiry, but their sole impact is to determine whether there remains a continuing basis to support the warrant: Bacon, at para. 25.

[61] The Bacon court did acknowledge that there may be a residual discretion to strike down a warrant for abuse of process: Bacon, at para. 27.

[62] In this province, courts, including this court, appear to have recognized a discretion to set aside a warrant, despite the presence of reasonable and probable grounds for its issuance, where non-disclosure was for some improper motive or to mislead the issuing judicial officer: R. v. Colbourne, 2001 CanLII 4711 (ON CA), [2001] O.J. No, 3620, 157 C.C.C. (3d) 273 (C.A.), at para. 40. Where an affiant has been shown to have deliberately provided false material statements, or to have deliberately omitted material facts from an ITO, with the intention of misleading the issuing judicial officer, the warrant may be set aside. But the threshold for setting aside the warrant in these circumstances is high: Lahaie v. Canada (Attorney General) (2010), 101 O.R. (3d) 241, [2010] O.J. No. 3100, 2010 ONCA 516, at para. 40, leave to appeal to S.C.C. refused [2010] S.C.C.A. No. 371. In at least one brief endorsement, this court has described the conduct necessary to engage [page336] this discretion as "so subversive of the search warrant process as to, in effect, amount to an abuse of process and require that the warrant be quashed": R. v. Vivar, [2009] O.J. No. 2126, 2009 ONCA 433, at para. 2. See, also, R. v. Evans, [2014] M.J. No. 129, 2014 MBCA 44, 306 Man. R. (2d) 9, at paras. 17, 19.

[63] Two brief points should be made about the remedy the appellant seeks.

[64] The first has to do with abuse of process. Where state conduct poses no threat to trial fairness, but risks undermining the integrity of the judicial process, the conduct falls within the residual category of the abuse of process doctrine: R. v. Babos, [2014] 1 S.C.R. 309, [2014] S.C.J. No. 16, 2014 SCC 16, at para. 31; R. v. O'Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, [1995] S.C.J. No. 98, at para. 73. The goal of the remedy is not to provide redress for a past wrong done to an accused, but to determine whether some remedy short of a stay of proceedings will adequately disassociate the justice system from the impugned state conduct going forward: Babos, at para. 39.

[65] At trial, the appellant framed the remedy he sought as the exclusion of evidence under s. 24(2) of the Charter for an infringement of s. 8. But when he took up the judge's invitation to challenge the warrant on the basis of a subversion of the pre-authorization process, the application became the functional equivalent of an application to terminate the prosecution for an abuse, namely, a subversion of the process. In those circumstances, the authorities limiting the availability of a stay of proceedings to the clearest of cases may be applicable: R. v. Jageshur, 2002 CanLII 45116 (ON CA), [2002] O.J. No. 4108, 169 C.C.C. (3d) 225 (C.A.), at para. 69.

État du droit quant au mandat général - arrêt de principe

R. v. Ha, 2009 ONCA 340

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Background

[23] Section 487.01 came into force in August 1993 (S.C. 1993, c. 40) along with several other provisions relating to police investigative powers. Those sections were designed to supplement the traditional search warrant power found in s. 487. A [page760] warrant under s. 487.01 can only be issued by a judge. The judge must be satisfied that:
-- there are reasonable and probable grounds to believe that an offence has been or will be committed (s. 487.01(1)(a));
-- information concerning the offence will be obtained through the use of the investigative means authorized in the warrant (s. 487.01(1)(a));
-- the issuance of the warrant is in the best interests of the administration of justice (s. 487.01(1)(b)); and
-- no other provision in the Act or other federal legislation provides for a warrant authorizing the investigative means sought to be used (s. 487.01(1)(c)).

[24] There are significant differences between the investigative powers described in s. 487 and those set out in s. 487.01. Unlike s. 487, s. 487.01 is not limited to searches of "a building, receptacle or place". There are no spatial limitations on s. 487.01. Nor is it limited to any particular investigative technique or procedure. Apart from a prohibition against interference with the bodily integrity of a person (s. 487.01(2)), there are no express limits on the investigative methods that may be authorized.

[25] Section 487.01 fundamentally alters the traditional search warrant paradigm. Instead of legislation permitting judicial authorization of a specific investigative method (search and seizure) where certain statutory conditions are met, s. 487.01 speaks to any situation in which the police seek judicial authority to do something that, absent that authority, would constitute a breach of s. 8 of the Charter. Section 487.01 ensures that the determination of whether the police will be allowed to use a specific investigative means (not involving interference with bodily integrity) in any given case will be decided by balancing the state interest in law enforcement and the individual interest in privacy. The state will not be denied access to investigative methods that are constitutionally justified because the relevant statute does not contemplate the specific investigative means that the police seek to use.

[26] Section 487.01 recognizes that Parliament cannot anticipate or imagine all investigative means or techniques that are or will become available to the police. Section 487.01 focuses not on authorizing specific techniques, at least where there is no interference with bodily integrity, but rather on whether the public interest in authorizing the specific investigative technique in issue is sufficiently strong in the circumstances to [page761] overcome an individual's constitutional right not to be subject to an unreasonable search or seizure.

[27] Despite the many differences between the traditional search warrant power in s. 487 and the general warrant power in s. 487.01, their essential structures are the same. Both require that the police obtain judicial authorization based on sworn evidence before engaging in investigative procedures that interfere with an individual's s. 8 rights. Both sections set out statutory prerequisites that must be satisfied before the authorization can be issued. Broadly speaking, those prerequisites are used to determine when the public interest in the investigation of crime is sufficiently strong to supersede an individual's s. 8 rights. While the criteria are not identical, they serve the same purpose.

[28] The appellant does not challenge the constitutionality of s. 487.01. In approaching the appellant's arguments, one must proceed from the premise that s. 487.01 draws a constitutionally acceptable balance between state powers and individual rights.

[29] Nor does the appellant contest that the trial judge applied the proper test for reviewing the general search warrant issued by Fraser J., namely, whether there was some evidence, as amplified on the review, that might reasonably be believed on the basis of which the authorization could have been granted: see R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, [1990] S.C.J. No. 115, at p. 1452 S.C.R.; R. v. Araujo, 2000 SCC 65 (CanLII), [2000] 2 S.C.R. 992, [2000] S.C.J. No. 65, at p. 1017 S.C.R.; R. v. Grant, 1999 CanLII 3694 (ON CA), [1999] O.J. No. 327, 132 C.C.C. (3d) 531 (C.A.), at para. 17.

[30] The appellant submits that the trial judge erred in three ways in his s. 8 Charter analysis, namely, in holding that:
(1) section 487.01 of the Code can authorize repeated covert entries and searches of private property; (2) the general search warrant issued in this case complied with s. 487.01(1)(c), which requires that there be "no other provision" in the Code or any other Act of Parliament that "would provide for a warrant, authorization or order permitting the technique, procedure or device" sought by the police; and (3) the general search warrant complied with s. 487.01(1)(b), which requires that the issuing judge be satisfied that "it is in the best interests of the administration of justice to issue the warrant". [page762]

Covert entry and search

[31] The appellant submits that the trial judge erred in holding that s. 487.01 of the Code can authorize repeated covert entries and searches of private property. According to the appellant, such entries and searches are not a "device or investigative technique or procedure" under s. 487.01(1) of the Code. Accordingly, a general search warrant under s. 487.01(1) cannot authorize them. The appellant asserts that s. 487.01 was introduced as part of a legislative scheme to address deficiencies in the search warrant system vis-à-vis police use of electronic devices to record and intercept communications. Specifically, it was devised to address the use of various "devices", "techniques" and "procedures" that were being utilized by the police, but were not authorized under the traditional search power in s. 487 of the Code. According to the appellant, repeated covert entries and searches fall outside the scope of this legislative purpose and description.

[32] For several reasons, I do not accept this submission.

[33] First, and most importantly, the plain meaning of the words of 487.01(1) does not support the interpretation advanced by the appellant. The words "investigative technique", "procedure" and "do any thing described in the warrant" easily encompass police entries and searches. Indeed, the verbal linkage between "entry" and "search" on the one hand, and "investigative technique" and "procedure" on the other hand, is, in my view, both obvious and overwhelming.

[34] Second, s. 487.01(5.1) specifically recognizes that a general warrant issued under subsection (1) can authorize a peace officer "to enter and search a place covertly". It is therefore difficult to see why a court should implicitly subtract from one subsection the very words that are explicitly set out in another subsection. Indeed, it is obvious that s. 487.01(5.1) would make no sense if a general warrant issued under subsection (1) could not be used to authorize covert entries and searches.

[35] Third, the case law case does not support the appellant's submission. In R. v. Noseworthy (1997), 1997 CanLII 1853 (ON CA), 33 O.R. (3d) 641, [1997] O.J. No. 1946 (C.A.), at p. 644 O.R., this court specifically declined to accept the interpretation that the words "do any thing" in s. 487.01(1) ought to be read ejusdem generis with the preceding words "any device or investigative technique or procedure". Similarly, in R. v. Lauda (1998), 1998 CanLII 2776 (ON CA), 37 O.R. (3d) 513, [1998] O.J. No. 71 (C.A.), affd (1998), 1998 CanLII 804 (SCC), 40 O.R. (3d) 159, [1998] 2 S.C.R. 683, [1998] S.C.J. No. 71, this court, at pp. 522-23 O.R., referred to the remedial character of s. 487.01 and confirmed that it "provides a flexible range of investigative procedures, ranging from various forms of surveillance to the search and seizure of tangible objects". [page763]

[36] Fourth, the legislative history giving rise to the enactment of s. 487.01 in 1993 does not support the appellant's submission that Parliament was concerned only with electronic devices to record and intercept communications. Indeed, as stated by Scott Hutchison in his book, Hutchison's Canadian Search Warrant Manual 2005 (Toronto: Thomson Carswell, 2004), at p. 143:

Through s. 487.01 (and s. 487.02), Parliament has provided a broad, plenary warrant-granting power intended to ensure that judicial authorization is legally available for virtually any investigative technique that can be brought within the Hunter conditions for judicial pre-authorization. (Emphasis added)

[37] Fifth, I see no policy reason for struggling to constrain the scope of s. 487.01 by adding words that were not expressly included by Parliament in the provision. In CanadianOxy Chemicals Ltd. v. Canada (Attorney General), 1999 CanLII 680 (SCC), [1999] 1 S.C.R. 743, [1998] S.C.J. No. 87, at paras. 20 and 21, Major J. said:

A primary, though not exclusive, purpose of the Criminal Code, and penal statutes in general, is to promote a safe, peaceful and honest society. This is achieved by providing guidelines prohibiting unacceptable conduct, and providing for the just prosecution and punishment of those who transgress these norms. The prompt and comprehensive investigation of potential offences is essential to fulfilling that purpose. The point of the investigative phase is to gather all the relevant evidence in order to allow a responsible and informed decision to be made as to whether charges should be laid.

At the investigative stage the authorities are charged with determining the following: What happened? Who did it? Is the conduct criminally culpable behaviour? Search warrants are a staple investigative tool for answering those questions, and the section authorizing their issuance must be interpreted in that light. (Emphasis added) In this passage, the Supreme Court of Canada was considering the interpretation of search warrants under s. 487 of the Code, assuming that the state has established all of the preconditions to the issuance of the search warrant and that those preconditions pass constitutional muster. In my view, the court's reasoning is equally applicable to the interpretation of general search warrants under s. 487.01.

[38] For these reasons, I conclude that a covert entry and search falls squarely within the meaning of an "investigative technique or procedure" under s. 487.01 of the Code.

"No other provision" -- s. 487.01(1)(c) of the Code

[39] The appellant contends that the trial judge erred in this case in not holding that the issuance of the general search warrant violated s. 487.01(c) of the Code, which restricts the [page764] issuance of a general warrant to situations in which "there is no other provision" in the Code or any other federal statute that "would provide for a warrant, authorization or order permitting the technique, procedure or device" sought by the police. According to the appellant, a search warrant could have been issued in this case under either s. 487 of the Code or s. 11 of the CDSA, thus precluding the issuance of a general warrant under s. 487.01 of the Code.

[40] In support of this submission, the appellant relies on the holding of Parrett J. of the British Columbia Supreme Court in R. v. Mero, 2003 BCSC 964 (CanLII), [2003] B.C.J. No. 1499, 109 C.R.R. (2d) 34 (S.C.), at para. 18, that "[t]he availability of a warrant under s. 11(1) of the Controlled Drug and Substances Act would preclude the issuance of a warrant under s. 487.01 by operation of s. 487.01(1)(c)".

[41] I do not accept this submission. The simple fact is that there is no provision in the Code, the CDSA or in any other federal statute that would authorize an unlimited number of covert entries and searches on private property over a two- month period.

[42] Further, Frankel J.A. addressed this issue in R. v. Ford, 2008 BCCA 94 (CanLII), [2008] B.C.J. No. 364, 229 C.C.C. (3d) 443 (C.A.) and rejected the above statement of Parrett J. in Mero, explaining, at paras. 50 and 51, that:

. . . there is nothing in the language of s. 487.01(1)(c) that precludes a peace officer from obtaining a general warrant solely because he or she has sufficient information to obtain a search warrant. . . . . .

That the police are in a position to obtain a search warrant does not prevent them from continuing to investigate using all other lawful means at their disposal. Having regard to the requirements of s. 487.01(1)(a), I expect that in many cases the information the police present in support of an application for a general warrant would also support an application for a search warrant. I see nothing wrong in utilizing a general warrant to obtain information with a view to gathering additional and possibly better evidence than that which could be seized immediately through the execution of a search warrant. In addition, I expect there will be some cases in which investigative action taken under a general warrant will result in an investigation, or an aspect of it, being abandoned; e.g., where a covert entry reveals that a property does not contain a marihuana grow operation.

[43] I agree with the analysis of Frankel J.A. The focus in the s. 487.01(1)(c) analysis is not on whether there are other investigative techniques that might accomplish the purported investigative purposes or goals of the police; rather, the focus is on the particular investigative technique or procedure that the police seek to utilize and whether it can properly be authorized by another provision in the Code or any other federal statute. In [page765] this case, the police sought to obtain authorization to conduct an unlimited number of covert entries and searches on private property over a two-month period. Except for s. 487.01 of the Code, there is "no other provision in . . . any other Act of Parliament" that could potentially accomplish this goal.

[44] I hasten to add that this is not the end of the inquiry. Although, s. 487.01(c) does not invite an assessment of whether or not the investigative technique or procedure sought to be utilized by the police should be authorized, the question of the merits of an authorization remains a live and important one. However, this question falls to be determined under s. 487.01(1)(b) of the Code. This leads to the appellant's third and, in my view, crucial argument.

"The best interests of the administration of justice" -- s. 487.01(1)(b) of the Code

[45] The appellant submits that the trial judge erred in this case in not holding that the general search warrant violated s. 487.01(1)(b) of the Code, which restricts the issuance of a general warrant to situations where "the judge is satisfied that it is in the best interests of the administration of justice to issue the warrant".

[46] The response to this submission must be anchored in the balancing exercise articulated by Dickson J. in Hunter v. Southam, 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, [1984] S.C.J. No. 36, at pp. 159-60 S.C.R.:

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. (Emphasis added) See, also, R. v. Finlay (1985), 1985 CanLII 117 (ON CA), 52 O.R. (2d) 632, [1985] O.J. No. 2680 (C.A.), at p. 655 O.R., and Hutchison's Canadian Search Warrant Manual 2005, at p. 162.

Quelle est la procédure d'examen lorsque des documents potentiellement protégés sont en possession de l'autre partie ?

Dente et al. v Delta Plus Group et al., 2023 ONSC 3376 

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[36]      Solicitor-client privilege is fundamental to the proper functioning of our legal system. The privilege ensures that clients are represented effectively. Without the assurance of confidentiality, people cannot be expected to speak honestly and candidly with their lawyers, which compromises the quality of the legal advice they receive: Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53, at para. 20 and 34; Blank v. Canada (Department of Justice), 2006 SCC 39, at 330; R. v. McClure, 2001 SCC 14, at paras. 5, 35.

[37]      Solicitor-client privilege is almost absolute. It may be set aside only in very rare and unusual circumstances and should not be interfered with unless absolutely necessary: Alberta (Information and Privacy Commissioner), at paras. 20, 34; Blank, at 330; R. v. McClure, 2001 SCC 14, at paras. 5, 35.

[38]      When a lawyer is advised that privileged documents were produced inadvertently, the lawyer must promptly return the material uncopied and, if possible, unread. If there is any issue as to whether privilege is properly asserted, the receiving counsel must seal the documents and any notes made in respect of the documents, and seek further direction from the court: Chan v. Dynasty Executive Suites Ltd., 2006 CanLII 23950 (Ont. Gen. Div.), at para. 74.

[39]      The party seeking to assert privilege may have to bring a motion for the return of the documents. Copies of the documents in question should be filed with the court in a sealed envelope to be opened and reviewed by the judge hearing the motion: Calgary (Police Service) v. Alberta (Information and Privacy Commissioner), 2018 ABCA 114, 16 C.P.C. (8th) 265, at para. 3.

[40]      The party opposing such a motion should cease any review or analysis of the documents in dispute until after the motion is heard: Celanese Canada Inc. v. Murray Demolition Corp., 2006 SCC 36, [2006] 2 SCR 189, at para. 59.

[41]      In this case, the parties agreed on a protocol and engaged the services of a neutral counsel, Gordon McGuire, to review the potentially privileged documents. Mr. McGuire provided copies of the contested documents to the court under seal. The documents were divided into categories in the manner that Mr. McGuire has classified the documents during his review.