SUPREME COURT OF CANADA
Descôteaux et al. v. Mierzwinski, [1982] 1 S.C.R. 860
Date: 1982-06-23
Simon Descôteaux and Centre communautaire
juridique de Montréal Appellants;
and
Alexandre Mierzwinski Respondent;
and
The Attorney General of the Province of Quebec and the
Commission des services juridiques Interveners;
and
André Landry, Normand Huneault, the Quebec
Bar and the Commission des droits de la personne Mis en cause.
File No.: 16113.
1981: October 27, 28; 1982:
June 23.
Present: Martland, Ritchie,
Dickson, Beetz, Estey, Chouinard and Lamer JJ.
ON APPEAL FROM THE COURT OF
APPEAL FOR QUEBEC
Criminal law — Search and seizure — False statement by legal
aid applicant regarding his income — Warrant issued to search legal aid offices
— Legal aid application form seized — Solicitor-client privilege — Right to
have communications with lawyer kept confidential — Right reflected in
substantive rule and rule of evidence (privilege) — Extent of the power of a
justice to authorize a search warrant with terms of execution — Scope of this
power with regard to law firms — Criminal Code, s. 443.
Evidence — Solicitor-client privilege False statement by
legal aid applicant regarding his income — Legal aid application form seized —
Whether information supplied by applicant is privileged — Point in time when
solicitor-client relationship arises.
In order to obtain proof that an applicant for legal aid
committed an indictable offence by incorrectly reporting a lower income in
order to be eligible for such services, two peace officers presented themselves
at a legal aid bureau with a search warrant. This warrant related to certain
documents, including an «Application for Legal Aid» form which contained, inter alia, information on applicant's
financial situation. The search was made in the presence of the syndic of the
Bar and the police
[page 861]
officers agreed to receive the documents in a sealed
envelope without examining them. Appellants' application for certiorari to quash the seizure on the
ground that the documents seized were protected by solicitor-client privilege
was dismissed both in the Superior Court and in the Court of Appeal.
Held: The
appeal should be dismissed.
All information which a person must provide in order
to obtain legal advice and which is given in confidence for that purpose enjoys
the privileges attached to confidentiality. This confidentiality attaches to
all communications made within the framework of the solicitor-client
relationship, to the lawyer as well as to his employees. It arises even before
the retainer is established, as soon as the client takes the first steps in
approaching a law firm. It may be invoked in any circumstances where such
communications are likely to be disclosed without the client's consent.
However, communications which are criminal in themselves or that are made with
a view to obtaining legal advice to facilitate the commission of a crime will
not be privileged.
A justice of the peace has no jurisdiction to order
the seizure of documents that would not be admissible in evidence in court on
the ground that they are privileged. Before authorizing a search of a lawyer's
office, he should even refuse to issue the warrant unless he is satisfied that
there is no reasonable alternative to the search. If he issues it, he should
attach terms of execution to the warrant designed to protect the right to
confidentiality of the lawyer's clients as much as possible.
In the case at bar, the communications made by the
applicant with respect to his financial means are criminal in themselves since
they constitute the material element of the crime charged. These communications
are accordingly not protected by the privilege and the justice had jurisdiction
to order the seizure. However, all other information contained in the "Application
for Legal Aid" form remains protected. The search was the only reasonable
alternative and the procedure followed during the seizure was proper and valid.
R. v. Littlechild
(1979), 51 C.C.C. (2d) 406; Re
Borden & Elliott and The Queen (1975), 30 C.C.C. (2d) 337 (Ont. S.C.), approved; Solosky v. The Queen, [1980] 1 S.C.R. 821; Re Pacific Press Ltd. and The Queen et al. (1977),
37 C.C.C. (2d) 487, considered;
Berd v. Lovelace (1577), 21 E.R. 33; Dennis v. Codrington (1580), 21 E.R. 53; Minter v. Priest, [1930] A.C. 558; R. v. Cox and Railton (1884), 14 Q.B.D. 153; R. v.Colvin,
Ex parte Merrick et al. (1970), 1 C.C.C. (2d) 8;
[page 862]
Re B.X. Development Ltd. and The Queen (1976), 36 C.R.N.S. 313 (B.C. S.C.); Re Alder et al. and The
Queen (1977), 37 C.C.C. (2d) 234; Attorney General of Quebec v. T., G., W., R. and C. (1977), 2
C.R. (3d) 30; Re Director of Investigation and Research and Canada
Safeway Ltd. (1972), 26 D.L.R. (3d) 745; Re Director of Investigation and Research and Shell Canada
Ltd. (1975), 22 C.C.C. (2d) 70; Re
Presswood and Delzotto (1975), 36 C.R.N.S. 322;
Re B.X. Development Ltd. and The Queen (1976),
31 C.C.C. (2d) 14 (B.C. C.A.); Re Steel and The Queen (1974), 21 C.C.C. (2d) 278; Re B and The
Queen (1977), 36 C.C.C. (2d) 235; Re
Borden & Elliott and The Queen (1975), 30
C.C.C. (2d) 337 (Ont. C.A.), referred
to.
APPEAL from a judgment of the Court of Appeal of Quebec
affirming a judgment of the Superior Court, [1978] C.S. 792, dismissing
appellants' application for certiorari. Appeal
dismissed.
Jean-Marie Larivière and
Jean-Pierre Lussier, for the
appellants,
Pierre Robert and Sarto Blouin, for the respondent and the intervener the Attorney General of the
Province of Quebec.
François Aquin and Jocelyne
Jarry, for the intervener the
Commission des services juridiques.
English version of the judgment
of the Court was delivered by
LAMER J.—A
citizen who lies about his financial means in order to obtain legal aid is
committing a crime. This appeal concerns the right of the police to be
authorized by a search warrant to search a legal aid bureau and seize the form
filled out by the citizen at his interview, for purposes of proving that this
crime was committed. This issue raises several others, including, in
particular, the scope of and procedures for exercising the authority to search
lawyers' offices, in view of the confidential nature of their clients' files.
This appeal will also give everyone an opportunity to note the deficiencies in
the law in this area and the limited ability of the courts to compensate for them
since their role is not primarily legislative.
[page 863]
FACTS
Two peace
officers presented themselves at the premises of a legal aid bureau in the
judicial district of Montreal with the following search warrant:
ATTENDU qu'il appert de la dénonciation assermentée de:
WHEREAS, it appears on
the oath of
[TRANSLATION]
1848 Gilles Bertrand
M.U.C. Peace Officer
10 St. Antoine Est, Mtl
[TRANSLATION] File No.
02-78-05-03-005
Q.P. file No. on behalf of
police
force/complainant organization
Que dans la
ville de St Laurent district Montreal
That in the City of
District
Le
19 ,
on the [TRANSLATION] May 4, 1978, 19 ,
[TRANSLATION] Between January 1, 1975 and January 1, 1978 an
indictable offence was committed, to wit a false pretence; Mr. Marcellein [sic]
Ledoux reported a lower income in
order to be eligible for legal aid services, contrary to section 324 of the
Criminal Code, and that documents to wit: a legal aid application form,
lawyer's retainer and other documents concerning this case.
These documents are
allegedly in these premises and will provide evidence concerning the commission
of the said offence.
Et que les dites choses ou quelques parties
d'entre elles se trouvent dans
And that the said things
or some part of them are in
de/of
au no./at no. 790 de la rue/of boul. Laurentien Street
à/at Ville St Laurent district/district of Montreal
ci-après appelé les lieux;
hereinafter
called the premises;
A CES CAUSES, les présentes
ont pour objet de vous autoriser à entrer (indiquer à
THIS IS, THEREFORE, to
authorize and require you to enter
Jour & nuit
(quelles heures)
dans les dits lieux et à
rechercher les dites choses (indicate time) the said premises, and to
search for the said
things
et les rapporter devant moi ou tout autre
juge pour le district
[page 864]
and to bring them before me, or some other Judge of the Peace
for the district
Donné sous mon seing à Montreal District
Montreal
Given under my seal at District of
le
on the [TRANSLATION] May 4, 1978
J.S.P./Juge de Paix
[TRANSLATION] acting in and for the province of Quebec
RETURNABLE
We do not know the wording of
the information that led respondent justice of the peace to authorize the
search and seizure of the documents described in the warrant; however, at the
hearing counsel agreed to admit for purposes of this appeal that the contents
of the information were as set out in the warrant.
The syndic of the Bar
intervened when the warrant was being executed and, as a result, the two mis en
cause police officers did not search the premises, but agreed to receive,
without even examining them, since they were in a sealed envelope,
documents they were told were those they were looking for. No one has yet seen
what the envelope contains, not even the judges of this Court, and everyone
agreed not to open the envelope before being authorized to do so by a judgment
of this Court. All are agreed, moreover, that it contains two forms completed
by Marcellin Ledoux and by a lawyer employed by the Centre communautaire
juridique de Montréal [Montreal Community Legal Centre], together with a notice
of refusal, and that the information contained in this application for legal
aid concerns the matters found in the following printed form:
[page 865]
[page 866]
It should be noted that at the bottom of the form the lawyer is
asked to enter his "professional notes" on the back of the document.
This form must be completed by those applying for legal aid. This
is a requirement of the Act (Legal Aid Act, R.S.Q. 1977, c. A-14).
64. An application for legal aid must set forth the financial
condition of the applicant and the basis of his claim, all the information
determined in the regulations and any additional relevant information required
by the corporation.
This requirement is aimed at allowing the bureau director to
determine whether an applicant is eligible having regard to s. 63 of the same
Act, the pertinent part of which reads as follows:
63. The general manager shall, within the scope of the
regulations, grant legal aid to any economically under-privileged person establishing the probable existence of a
right.
Those who do not comply with the requirement will be deprived of
the services of a lawyer paid by the bureau, in the same way as those who do
not meet the eligibility criteria.
[page 867]
It should also be noted that the information on the first page of
the form deals principally with the financial situation of the applicant for
purposes of determining whether he is eligible for aid as an economically
underprivileged person, and that the professional notes on the reverse concern
the probable existence of the basis of his claim. These professional
notes could very well record the applicant's account of the facts which
lead him to apply for aid and on which the bureau will decide the probable
existence of the basis of his right.
IN THE SUPERIOR COURT
After the documents had been seized and sealed, Mr. Descôteaux
and the legal aid bureau (le Centre communautaire juridique de Montréal)
presented to a judge of the Superior Court, district of Montreal, a motion for
the issuance of a writ of certiorari requesting that the seizure be
quashed on the grounds of nullity and requesting the Superior Court judge to
order the justice of the peace to return the sealed envelope and its contents
to them.
The motion was dismissed, but the judge amended the wording of
the warrant, stating that [TRANSLATION]
"the words 'other documents concerning this case' should be struck
out and no longer regarded as forming part of the said search warrant".
The Superior Court judge stated that he was of the view that
solicitor-client privilege could be invoked as soon as confidentiality was
threatened, "without waiting until the person or persons disregarding the
privilege attempted to tender the information thus obtained as evidence".
He found, however, that the documents seized were not privileged since they had
been prepared before the solicitor-client relationship came into existence
([1978] C.S. 792, at p. 799):
[TRANSLATION] Returning
now to the problem raised by applicants, I have come to the conclusion that the
documents seized, namely two legal aid application forms and one refusal form,
are not privileged. The application for
legal aid is nothing more or less than a descriptive form filled out by a person wishing to obtain legal aid to let the organization know that he
meets the eligibility requirements.
There is no relationship at all
[page 868]
between the information contained in this form, which deals
with the applicant's civil status, matrimonial status and financial situation,
and the information he may provide to his counsel in order to obtain legal
advice or representation in litigation. Moreover, there is not even a
solicitor-client relationship at the time this form is completed, and the
retainer does not come into existence until the applicant has been accepted by
the appropriate authority, which, in so doing, will have decided that he meets
the eligibility requirements. It is only after this administrative decision has
been made that there will be created between the applicant citizen and the
legal aid lawyer this type of privileged relationship that is scrupulously
protected by the common law.
I am unable to arrive at any other conclusion, since it seems
clear to me that these documents are records of an administrative nature that
are necessary precisely because of the nature of the services sought by the
applicant. Finally, I think that the "declaration" which the
applicant must sign in the presence of a witness and which appears at the
bottom of the "application for legal aid" confirms my opinion that
this document is not privileged:
I declare that this information is true and I undertake to
inform your bureau or corporation of any change in my economic situation.
I have been informed of my right to be represented by a lawyer
of my choice and I have chosen to be represented by:
A lawyer employed full-time by the corporation/a lawyer in private
practice.
There is not yet any solicitor-client relationship; at the
very most the applicant has expressed his desire to have a lawyer who is
employed by the legal aid bureau or a private practitioner, without any further
information concerning his identity. Moreover, the undertaking by the applicant
to inform the "bureau" or the "corporation" of any change
in his economic situation indicates most clearly, in my view, that this type of
information is not regarded by the applicant himself as confidential or as
forming part of the consultation or legal advice sought from a lawyer whose
identity he does not yet know. This seems to me sufficient to dispose of the
case of the legal aid application forms, and the same comments apply, it goes
without saying, to the notice of refusal. These documents, owing to their very
nature and to the position the citizen is in when they are filled out, do not
fall within the category of privileged communications . . .
(Emphasis added.)
[page 869]
Finally, I repeat, the Superior
Court judge amended the warrant by striking out the words "other documents
concerning this case" on the ground that the authorization to search and
seize conferred by those words was too general and imprecise.
IN THE COURT OF APPEAL
The Court of Appeal adopted
the conclusions of the Superior Court judge, together with his reasons. To
these Bélanger J.A. added on behalf
of the Court that in any event solicitor-client privilege could not have
operated to protect the communication, since the latter was precisely what had
been resorted to in order to mislead a representative of the legal aid bureau.
On that matter, he stated the following:
[TRANSLATION] In the
case at bar the communications or documents that are alleged to be confidential
are those referred to in the charge as having been used in the commission of the offence in question. Apart from common law principles, they are no more privileged
than if the same information and
documents had been used to mislead the lawyer himself in order to
fraudulently obtain his services on special
terms. In either case I do not think
that false communications made to the eventual victim who will have to bear the cost of the services are confidential in any way. In short, a
communication made to a
representative of the Commission des services juridiques [Legal Services
Commission] is in no way confidential if it
is an element of an offence committed to the latter's prejudice, since
in such circumstances there is no confidentiality between solicitor and client.
I think that at this point I
should state my findings in the case at bar; I shall give reasons for them
later.
In my view it was correctly
decided that it is not necessary to wait for the trial or preliminary inquiry
at which the communication is to be adduced or sought in evidence before
raising its confidentiality. With all due respect for the opposite view, I am
of the opinion, however, that in principle information concerning one's
financial means the basis of the claim, and any other information required by
the corporation or the regulations (Legal
Aid Act, s. 64) which a person applying for legal aid must
provide in order to obtain the services of a
[page 870]
lawyer is, except in the exceptional cases I shall deal with
later, privileged. I share the opinion of the Quebec Court of Appeal, however,
that, in the case at bar, the information concerning Marcellin Ledoux's
financial means had lost the benefit of being privileged since, as alleged in
the search warrant, it was communicated with a view to criminally obtaining a
benefit and, consequently, fell within one of the common law exceptions to the
principle of privilege. But since it is alleged that the crime was committed by
means of false pretences only with respect to the applicant's financial means,
the professional notes, which concern the basis of his claim, remain
privileged.
I do not intend to repeat here everything that others have said,
on numerous occasions and very clearly and completely, about solicitor-client
privilege, or about the issuance and execution of search warrants.
I think, however, that I should make a few remarks about the
existence and effects of a person's right to have his communications with his
lawyer kept confidential; I shall then deal more particularly with the search
power provided for in the Criminal Code.
THE RIGHT TO CONFIDENTIALITY
It is not necessary to demonstrate the existence of a person's
right to have communications with his lawyer kept confidential. Its existence
has been affirmed numerous times and was recently reconfirmed by this Court in Solosky v. The Queen, [1980]
1 S.C.R. 821, where Dickson J. stated (at p. 839):
One may depart from the
current concept of privilege and approach the case on the broader basis
that (i) the right to communicate in confidence with one's legal adviser is
a fundamental civil and legal right, founded upon
the unique relationship of solicitor and client, and (ii) a person
confined to prison retains all of his
civil rights, other than those expressly or impliedly taken from him by law.
[page 871]
There is no denying that a person has a right to communicate with
a legal adviser in all confidence, a right that is "founded upon the
unique relationship of solicitor and client"
(Solosky, supra). It is a
personal and extra-patrimonial right which follows a citizen throughout his
dealings with others. Like other personal, extra-patrimonial rights, it gives
rise to preventive or curative remedies provided for by law, depending on the
nature of the aggression threatening it or of which it was the object. Thus a
lawyer who communicates a confidential communication to others without his
client's authorization could be sued by his client for damages; or a third
party who had accidentally seen the contents of a lawyer's file could be
prohibited by injunction from disclosing them.
Owing to its importance, in addition to these general remedies
available to the holder, various statutes, both federal and provincial,
recognize this right by giving it additional, specific protection.
These include, for example, statutes governing the practice of
the profession of barrister or advocate (in Quebec, the Act respecting
the Barreau du Québec, R.S.Q. 1977, c. B-1, s. 131)
and certain provincial charters of rights (in Quebec, the Charter of human rights and freedoms, R.S.Q.
1977, c. C-12, s. 9).
[page 872]
It is again owing to the
importance of this right that certain statutes contain special provisions
applicable in situations where, were it not for those special provisions, there
would be undue interference with the right to confidentiality. An example of
such concern for that right can be found in the safeguards set out in s. 232 of
the Income Tax Act, 1970-71-72
(Can.), c. 63.
There is no doubt that this
right belonging to a person in his dealings with others, including the State,
is part of our Quebec public law as well as of the common law.
Although we recognize numerous
applications of it today, the right to confidentiality did not first appear
until the 16th century, and then did so as a rule of evidence (see, inter
alia, Berd v. Lovelace (1577), 21 E.R.
33; Dennis v. Codrington (1580),
21 E.R. 53).
The rule of evidence is well
known; it has often been stated, This Court referred to it again recently in Solosky.
That decision sets out the conditions precedent to the existence of the
privilege, as well as its limits and exceptions. It should be pointed out that
the substantive conditions precedent to the existence of the privilege, which
the judges have gradually established and defined, are in fact the substantive
conditions precedent to the existence of the right to confidentiality, the
former being merely the earliest manifestation of the latter. There is no need
to list those conditions exhaustively here or to review all the nuances that
have been developed by the courts over the years. It will be sufficient to
review them in broad outline and to emphasize certain aspects of particular
relevance to this appeal.
The following statement by
Wigmore (8 Wigmore, Evidence, para.
2292 (McNaughton rev, 1961)) of the rule of evidence is a good summary, in my
view, of the substantive conditions precedent to the existence of the right of
the lawyer's client to confidentiality:
Where legal advice of any kind is sought from a professional
legal adviser in his capacity as such, the communications relating to that
purpose, made in confidence
[page 873]
by the client, are at his instance permanently protected from
disclosure by himself or by the legal adviser, except the protection be waived.
Seeking advice from a legal adviser includes consulting those who
assist him professionally (for example, his secretary or articling student) and
who have as such had access to the communications made by the client for the
purpose of obtaining legal advice.
There are exceptions. It is not sufficient to speak to a lawyer
or one of his associates for everything to become confidential from that point
on. The communication must be made to the lawyer or his assistants in their
professional capacity; the relationship must be a professional one at the exact
moment of the communication. Communications made in order to facilitate the
commission of a crime or fraud will not be confidential either, regardless of
whether or not the lawyer is acting in good faith.
THE SUBSTANTIVE RULE
Although the right to confidentiality first took the form of a
rule of evidence, it is now recognized as having a much broader scope, as can
be seen from the manner in which this Court dealt with the issues raised in Solosky.
Solosky was an inmate at Millhaven penitentiary. He was seeking a
declaration that henceforth all properly identified items of solicitor-client
correspondence would be forwarded to their respective destinations unopened.
The inmates' right to confidentiality conflicted with the Penitentiary Act, R.S.C. 1970, c.
P-6, and more particularly with Regulation 2.18 of the Penitentiary Service Regulations, allowing
the director of the institution to order censorship of correspondence to the
extent considered necessary
[page 874]
or desirable for
the security of the institution.
On behalf of this
Court Dickson J., stated the
following (at p.
841):
Counsel for the Crown submits there are three alternative
interpretations of the scope of Regulations 2.17 and 2.18 which may govern the
extent of the authority of the institutional head in dealing with an envelope
which appears to have originated from a solicitor, or to be addressed to a
solicitor, in circumstances where the institutional head has reason to believe
that the unrestricted and unexamined passage of mail to or from the particular
inmate in question represents a danger to the safety and security of the
institution:
(a) he may nonetheless permit the letter to be delivered
unopened and unexamined to the inmate;
(b) he may suspend the inmate's privilege to receive mail, in
respect of that letter, pursuant to sections 2.17 and 2.18 of the Penitentiary
Service Regulations.
(c) he may order that the envelope be subject to opening and
examination to the minimum extent necessary to establish whether it is properly
the subject of solicitor-client privilege.
Counsel contends that to interpret the Regulations as
requiring the first of these alternatives is to leave the institutional head
without the authority he requires to control the potential passage of
contraband, or of correspondence which may endanger the safety of the
institution, under the guise of confidential communications passing between
inmate and solicitor. I agree. I would also reject the second as providing no
solution. I agree that the third alternative represents that interpretation of
the scope of the Regulations which permits to an inmate the maximum opportunity
to communicate with his solicitor through the mails that is consistent with the
requirement to maintain the safety and security of the institution.
In my view, the "minimum extent necessary to establish
whether it is properly the subject of solicitor-client privilege" should
be interpreted in such manner that (i) the contents of an envelope may be
inspected for contraband; (ii) in limited circumstances, the communication may
be read to ensure that it, in fact, contains a confidential communication
between solicitor and client written for the purpose of seeking or giving legal
advice; (iii) the letter should only be read if there are reasonable and probable
grounds for believing the contrary, and then only to the extent necessary to
determine the bona fides of the communication; (iv) the authorized
penitentiary official who examines the envelope, upon ascertaining that the
envelope contains nothing in breach of
[page 875]
security, is under a duty at law to maintain the confidentiality
of the communication. Paragraph 7c. of Directive 219 underlines this point.
It is quite apparent that the Court in that case applied a
standard that has nothing to do with the rule of evidence, the privilege, since
there was never any question of testimony before a tribunal or court. The Court
in fact, in my view, applied a substantive rule, without actually formulating
it, and, consequently, recognized implicitly that the right to confidentiality,
which had long ago given rise to a rule of evidence, had also since given rise
to a substantive rule.
It would, I think, be useful for us to formulate this substantive
rule, as the judges formerly did with the rule of evidence; it could, in my
view, be stated as follows:
1. The confidentiality of communications between solicitor and
client may be raised in any circumstances where such communications are likely
to be disclosed without the client's consent.
2. Unless the law provides otherwise, when and to the extent
that the legitimate exercise of a right would interfere with another person's
right to have his communications with his lawyer kept confidential, the
resulting conflict should be resolved in favour of protecting the confidentiality.
3. When the law gives someone the authority to do something
which, in the circumstances of the case, might interfere with that
confidentiality, the decision to do so and the choice of means of exercising
that authority should be determined with a view to not interfering with it
except to the extent absolutely necessary in order to achieve the ends sought
by the enabling legislation.
4. Acts providing otherwise in situations under paragraph 2
and enabling legislation referred to in paragraph 3 must be interpreted
restrictively.
[page 876]
THE RULE OF EVIDENCE
The rule of evidence is
formulated by Cross (Cross on
Evidence, 5th ed., 1979) as
follows (at p. 282):
In civil and criminal
cases, confidential communications passing
between a client and his legal adviser need not be given in evidence
by the client and, without the client's consent, may not be given in evidence
by the legal adviser in a judicial proceeding ...
The rule of evidence does not
in any way prevent a third party witness (I am referring here to someone other
than an agent of the client or the lawyer) from introducing in evidence
confidential communications made by a client to his lawyer. It is important to
note, however, that before allowing such evidence to be introduced and in determining
to what extent to allow it, the judge must satisfy himself, through the
application of the substantive rule (No. 3), that what is being sought to be
proved by the communications is important to the outcome of the case and that
there is no reasonable alternative form of evidence that could be used for that
purpose.
CONFIDENTIALITY IN THE CASE
AT BAR
In the case at bar the
principal issue is to determine when the solicitor-client relationship, which
confers the confidentiality protected by the substantive rule and the rule of
evidence, arises.
The Superior Court judge, as we
have seen, was of the view that this relationship, and consequently the right
to confidentiality, did not arise until the legal aid applicant had been
accepted, that is, until the retainer was established.
When dealing with the right to
confidentiality it is necessary, in my view, to distinguish between the moment
when the retainer is established and the moment when the solicitor-client
relationship arises. The latter arises as soon as the potential client has his
first dealings with the lawyer's office in order to obtain legal advice.
The items of information that a
lawyer requires from a person in order to decide if he will agree to
[page 877]
advise or represent him are
just as much communications made in order to obtain legal advice as any
information communicated to him subsequently. It has long been recognized that
even if the lawyer does not agree to advise the person seeking his services,
communications made by the person to the lawyer or his staff for that purpose
are nonetheless privileged (Minter v. Priest, [1930] A.C. 558; Phipson
on Evidence, 12th ed., 1976, p. 244, No. 589; 8 Wigmore, Evidence
(McNaughton rev. 1961), p. 587, para. 2304).
Moreover, the same applies not
only to information given before the retainer is perfected concerning the legal
problem itself, but also to information concerning the client's ability to pay
the lawyer and any other information which a lawyer is reasonably entitled to
require before accepting the retainer. First, this information of an
administrative nature is just as related to the establishment of the
professional relationship as any other information; this is especially clear
when, as in the case at bar, the legal aid applicant "must set forth
[his] financial means . . . and the basis of his claim". In addition,
information of this nature that a person gives his lawyer for that purpose may
also be highly confidential and would have been kept secret by that person were
it not for that person's need of the assistance of a legal adviser.
For example, the legal aid form
requires the applicant to provide information concerning his dependants. A
person could thus be forced to disclose to the legal aid bureau a paternity
that had until then been kept secret, in order to establish his onerous
financial obligations and consequently his limited means. One can imagine,
given the form the applicant must complete, numerous other situations where the
information given would be highly personal.
I therefore do not think that a
distinction should be made between information that must be given in order to
establish the probable existence of a valid claim and that given to establish
eligibility from the point of view of financial means, since, on
[page 878]
the one hand, information
concerning the person's financial situation may be just as highly confidential
as any other information and since, on the other hand, the fact of being unable
to meet the eligibility requirements respecting financial means is no less fatal
to the ability to obtain the services sought.
The issue we are concerned with
was recently raised in Alberta in R. v. Littlechild (1979), 51 C.C.C. (2d) 406.
An individual was charged with
having defrauded a store by using an N.S.F. cheque. In order to prove that the
accused knew that his bank had ordered a suspension of all operations
concerning his bank accounts and that consequently he knew that his cheque
would not be honoured, the Crown wished to introduce in evidence communications
that the accused had made previously to a legal aid bureau employee.
During an interview and on a
form similar to the one involved in the case at bar, the accused had provided
certain information concerning his financial means to this employee, who was
not a lawyer, in order to establish his eligibility for the legal aid bureau's
services. According to the Crown, part of this information dealt in particular
with the fact that the accused knew that he no longer had access to the funds
in his bank accounts.
The trial judge refused on his
own motion to allow the Crown to introduce these communications in evidence.
The Attorney General appealed.
Laycraft J.A., rendering
judgment on behalf of the Court of Appeal, stated the following (at pp.
411-12):
A number of cases establish the principle that
solicitor-client privilege extends both to communications between the agents of
a client and his solicitor and to communications between a client and agents of
the solicitor. In Wheeler v. Le Marchant (1881), 17 Ch. D. 675 at p. 682, Jessel,
M.R., said:
The actual communication to the solicitor by the client is of
course protected, and it is equally protected whether it is made by the client in person or is
[page 879]
made by an agent on behalf of the client, and whether it is
made to the solicitor in person or to a clerk or subordinate of the solicitor
who acts in his place and under his direction.
In Lyell v. Kennedy (1884),
27 Ch. D. 1, Cotton, L.J., said at p. 19:
But then this privilege is confined to that which is
communicated to or by that man [the client] by or to the solicitors or their
agents, or any persons who can be treated properly as agents of the solicitors.
We have therefore thought it right, in order to prevent an evasion of what is
the proper view of the law by the use of that word 'agents,' to require that
the Defendant shall put in a further affidavit stating whether the agents
mentioned were his agents, or whether they were the agents of the solicitors
and persons so employed by the solicitor as to be his agents, including such
agents as every solicitor's clerk may be said to be, who would all be entitled
to the protection given to solicitors. Subject, then, to that alteration, we
think that the protection claimed is in law good.
In R. v. Chaney (1908),
13 C.C.C. 289, 17 Man. R. 467 (Man. C.A.), police had a person falsely pose as
a representative of the accused's solicitor in order to obtain a statement from
the accused. The Court held that the person obtaining the statement must be
treated as though he was the solicitor's agent as he represented himself to be,
and that the evidence was therefore inadmissible on the ground of privilege.
Recent Canadian cases also holding that solicitor-client
privilege extends to communications through the intermediary of an agent are Susan Hosiery Ltd. v. Minister of National Revenue,
[1969] 2 Ex. C.R. 27, [1969] C.T.C. 353, and Re Alcan-Colony Contracting Ltd. et al. and
Minister of National Revenue (1971), 18 D.L.R. (3d) 32, [1971] 2
O.R. 365.
It is not a factor against the existence of privilege that
the communication between the respondent and the Legal Aid officer which is
sought to be introduced in evidence related to the respondent's effort to
obtain counsel rather than to advice given for the purpose of the actual
defence. In Wheeler v. Le Marchant,
supra, Jessel, M.R., said at p. 682:
So again, a communication with a solicitor for the purpose of
obtaining legal advice is protected though it relates to a dealing which is not
the subject of litigation, provided it be a communication made to the
[page 880]
solicitor in that character and for the purpose.
This principle has been stated earlier in broader terms in Minet v.
Morgan (1873), 8 Ch. App. 361, by Lord Selbourne, L.C., at p. 368:
But there is a later authority by that most accurate and
learned Judge, Sir R. T.
Kindersley-Lawrence v. Campbell, 4 Drew. 485, 490 [62 E.R. 186 at 188], which contains a statement of
the Vice-Chancellor's view of the principle and also of the rule which in 1859
had come to be well settled and established in this Court on the foundation of
that principle. He says: 'It is not now necessary, as it formerly was, for the
purpose of obtaining production that the communications should be made either
during or relating to an actual or even to an expected litigation. It is
sufficient if they pass as professional communications in a professional
capacity.' I can only say that I entirely agree with the views both of the
principle and of its proper extension taken in these later authorities.
It is also clear that solicitor-client privilege can extend
to conversations in which a person makes disclosures while seeking to retain a
solicitor, though in fact the retainer is not perfected. In Minter v, Priest, [1930] A.C. 558 at p. 573, Viscount Dunedin said:
Now, if a man goes to a solicitor, as a solicitor, to consult
and does consult him, though the end of the interview may lead to the
conclusion that he does not engage him as his solicitor or expect that he
should act as his solicitor, nevertheless the interview is held as a privileged
occasion.
It follows from the authorities referred to above that
conversations with a solicitor's agents held for the purpose of retaining him
would also be privileged, even though the solicitor was not then, or ever,
retained. In my view, the principle protects from disclosure a conversation
between an applicant for legal aid and the non-lawyer official of the Legal Aid
Society who interviews him to see if he is qualified.
The privilege protecting from disclosure communications
between solicitor and client is a fundamental right—as fundamental as the right
to counsel itself since the right can exist only imperfectly without the
privilege. The Courts should be astute to protect both. As long ago as Pearson v. Foster (1885), 15 Q.B.D. 114,
[page 881]
Brett, M.R., warned that free and confident communication within the solicitor-client relationship is
so vital a part of the right to counsel that the privilege ought not to
be 'frittered away'. At pp. 119-20 he said:
The privilege with regard to
confidential communications between solicitor and client for professional purposes
ought to be preserved, and not frittered away. The reason of the privilege is
that there may be that free and confident communication between solicitor and client which lies at the foundation of the use
and service of the solicitor to the client ...
(Emphasis added.)
I am fully in agreement with
the conclusions of the Alberta Court of Appeal. It is only fair to mention, in
passing, that the judgment of the Superior Court judge in the case at bar was
rendered prior to that decision.
Confidential communications,
whether they relate to financial means or to the legal problem itself, lose
that character if and to the extent that they were made for the purpose of
obtaining legal advice to facilitate the commission of a crime.
The same is true a fortiori where, as in the case at bar, the communication itself is the material
element (actus reus) of the crime; this is all the more evident where
the victim of the crime is precisely the office of the lawyer to whom the
communication was made.
This exception has been
recognized for a very long time. The case most frequently referred to is R. v. Cox and Railton (1884), 14 Q.B.D. 153, where Stephen J. stated (at
p. 167):
The reason on which the rule is said to rest cannot include
the case of communications, criminal in themselves, or intended to
further any criminal purpose, for the
protection of such communications cannot possibly be otherwise than
injurious to the interests of justice, and to those of the administration of
justice. Nor do such communications fall
within the terms of the rule. A communication in furtherance of a
criminal purpose does not 'come into the ordinary scope of professional
employment.'
(Emphasis added.)
In the case at bar, the
communications dealing with Marcellin Ledoux's financial means are, according
to the search warrant, "criminal in
[page 882]
themselves", to use
Stephen J.'s words, and will not benefit as such from the protection they would
otherwise have been afforded by the substantive rule and the rule of evidence,
had they been confidential.
THE SEARCH WARRANT PROVIDED
FOR IN S. 443(1)(b) OF THE CRIMINAL CODE AND THE RIGHT TO CONFIDENTIALITY
I do not intend to examine all
the questions raised by the interpretation of s. 443 and the determination of
the duties and powers it confers on the justice of the peace. Nor is it
necessary for the purposes of this appeal that we consider the things that can
be searched for and seized under s. 443(1)(a) or (c). It is sufficient for the
purposes of this appeal to make certain general observations, that suggests a
mere reading of s. 443(1)(b).
We know that, save certain
exceptions, one cannot go into someone else's house without a warrant, even in
order to search for evidence of a crime, Section 443 permits such entry on
certain conditions, but subjects such an activity to a certain degree of
judicial control. It provides that the person designated by the justice in the
warrant may search the premises for the things described in the warrant and, if
they are found, seize them and carry them before the justice. The only
restriction on the type of things the search for and seizure of which a justice
of the peace may authorize by warrant is that they be one of the things described
in paras. (a), (b) and (c) of
s. 443(1):
443. (1) A justice who is satisfied
by information upon oath in Form 1, that there is reasonable ground to believe
that there is in a building, receptacle or place
(a) anything upon or in respect of which any offence against
this Act has been or is suspected to have been committed,
(b) anything that there is reasonable ground to believe will afford evidence with respect to the
commission of an offence against this Act, or
(c) anything that there is reasonable
ground to believe is intended to be used for the purpose of committing any offence against the person for which a person
may be arrested without warrant,
may at any time issue a warrant under his hand authorizing a person named therein or a peace officer
to search
[page 883]
the building, receptacle
or place for any such thing, and to seize and carry it before the
justice who issued the warrant or some other justice for the same territorial
division to be dealt with by him according to law.
In the case at bar we are thus concerned with something provided
for in para. (b), that is, something that is likely to "afford evidence
with respect to the commission of an offence" in a legal proceeding.
Moreover, the legislation does not make any distinction with
respect to the nature of the premises sought to be searched. One may therefore
search anywhere for what is provided for under para. (b) of the section,
including in a lawyer's offices.
Indeed the jurisdiction of a justice of the peace to
authorize a search thus does not depend on the nature of the place sought to be
searched but on a reasonable belief that there are to be found on the premises
things covered by para. (b) of s. 443(1).
It then becomes necessary to reconcile the authority to search, a
right that society has assumed as being essential to the suppression of crime,
with the right to confidentiality, a right that society recognizes as essential
for the better administration of justice.
The right to confidentiality enjoyed by a lawyer's client does
not, by virtue of the substantive rule, interfere with the jurisdiction
of the justice of the peace to authorize the search, but might do so by virtue
of the rule of evidence. At the very most, in the present state of the law, the
substantive rule requires that a justice of the peace be more demanding before
authorizing a search of a lawyer's office or one of his files and will lead
him, where necessary, to set out special procedures for the execution of the
warrant in order to limit to what is absolutely inevitable the breach of
confidentiality.
This leads us to a consideration of the effect of the right to
confidentiality on searches, first as a rule of evidence and then as a
substantive rule. The rule of evidence affects the jurisdiction of the
[page 884]
justice of the peace, while the
substantive rule affects how he exercises it.
(a) As a rule of evidence
Some courts have been unwilling
to recognize that a justice of the peace has the right to refuse a search
warrant on the sole ground that what is sought to be seized could never
subsequently be received in evidence because it is protected by
solicitor-client privilege. (See R. v. Colvin, Ex parte Merrick et al. (1970),
1 C.C.C. (2d) 8; Re B.X. Development Ltd. and The Queen (1976), 36
C.R.N.S. 313 (B.C. S.C.); Re Alder et al. and The Queen (1977), 37
C.C.C. (2d) 234; Attorney General of Quebec v. T., G., W., R. and C. (1977),
2 C.R. (3d) 30).
Others have ruled that he has
such a right, either at the time the warrant is being issued (Re Director of
Investigation and Research and Canada Safeway Ltd. (1972), 26 D.L.R. (3d)
745; Re Director of Investigation and Research and Shell Canada Ltd. (1975),
22 C.C.C. (2d) 70; Re Borden & Elliott and The Queen (1975), 30
C.C.C. (2d) 337 (Ont. S.C.); Re Presswood and Delzotto (1975), 36
C.R.N.S. 322; Re B.X. Development and The Queen (1976), 31 C.C.C. (2d)
14 (B.C. C.A.)), or at the time of an application under s. 446(3) to have the
things seized returned (Re Steel and The Queen (1974), 21 C.C.C. (2d) 278;
Re B and The Queen (1977), 36 C.C.C. (2d) 235).
It is not necessary to review
all the decisions to the effect that the justice of the peace can do this at
the time the warrant is being issued. It is sufficient, in my view, to quote
here in this connection what was said by Southey J. of the Supreme Court of
Ontario at trial in Re Borden & Elliott and The Queen (1975), 30
C.C.C. (2d) 337, since I agree with his critical analysis of these decisions
and his conclusions (the Ontario Court of Appeal, hearing an appeal in that
case, chose not to rule on the question and the appeal was decided on another
ground). Southey J. stated the following (at pp. 341-43):
The first question to be decided is whether a search warrant issued under s. 443 of the Criminal
Code
[page 885]
overrides the solicitor-and-client privilege and can be used
to give authority to a peace officer to search for and seize documents which
are subject to that privilege. The relevant provisions of s. 443 reads [sic]
as follows:
443(1) A justice who is satisfied by information upon oath in
Form 1, that there is reasonable ground to believe that there is in a building,
receptacle or place
[…]
(b) anything that there is reasonable ground to believe will
afford evidence with respect to the commission of an offence against this Act,
or
[…]
may at any time issue a warrant under his hand authorizing a
person named therein or a peace officer to search the building, receptacle or
place for any such thing, and to seize and carry it before the justice who
issued the warrant or some other justice for the same territorial division to
be dealt with by him according to law.
The position of the applicants is that a Justice has no
jurisdiction to issue a warrant with respect to documents subject to the
solicitor-and-client privilege, because the issuance of warrants is limited
under s. 443 to documents which the Justice has reasonable grounds to believe
will afford evidence of the offence charged. As documents covered by the
solicitor-and-client privilege would not be admissible at trial, the Justice
could not believe that such documents would afford evidence of the offence.
This was the basis of the decision of Judge Rice in the Provincial Court
(Criminal Division) in Re Steel and The
Queen (1974), 21 C.C.C. (2d) 278, 6 O.R. (2d) 644, 29 C.R.N.S. 355.
In R. v. Colvin, Ex p.
Merrick et al. (1970), 1 C.C.C. (2d) 8, [1970] 3 O.R. 612, Osier,
J., quashed a search warrant on the ground that the Justice should not have
been satisfied on the information that there were reasonable grounds for believing
that there was in the building in question anything that would afford evidence
with respect to the commission of an offence. He went on to state in obiter, however, that he would not be
prepared to quash a warrant simply because the possibility existed that the
material in question might be covered by the solicitor-and-client privilege,
because that privilege is a rule of evidence and not a rule of property. It was
his view that the privilege could only be asserted by way of
[page 886]
objection to the introduction of the allegedly privileged
material in evidence at the appropriate time.
Almost five years after the decision of Osier, J., the Federal
Court of Appeal held in Re Director of
Investigation and Research and Shell Canada Ltd. (1975), 22 C.C.C.
(2d) 70, 55 D.L.R. (3d) 713, 18 C.P.R. (2d) 155, [[1975] F.C. 184], that the
authority given to the Director of Investigation under s. 10 of the Combines Investigation Act to enter
premises on which he believes evidence may be found relating to a matter under
inquiry and to examine and copy documents that may afford such evidence, does
not override the solicitor-and-client privilege.
Chief Justice Jackett, with whom the other members of the
Court agreed, made the following statement at pp. 78-9 C.C.C., pp. 721-2 D.L.R.
[p. 193 [1975] F.C.]:
... it has been recognized from very early times that the
protection, civil and criminal, afforded to the individual by our law is
dependent upon his having the aid and guidance of those skilled in the law
untrammelled by any apprehension that the full and frank disclosure by him of
all his facts and thoughts to his legal advisor might somehow become available
to third persons so as to be used against him.
He then continued at p. 79 C.C.C., p. 722 D.L.R., [p. 194
F.C.]:
I fully realize that the protection of the confidentiality of
the solicitor-and-client relationship has, heretofore, manifested itself
mainly, if not entirely, in the privilege afforded to the client against the
compulsory revelation of communications between solicitor and client in the
giving of evidence in Court or in the judicial process of discovery. In my
view, however, this privilege is a mere manifestation of a fundamental
principle upon which our judicial system is based, which principle would be breached
just as clearly, and with equal injury to our judicial system, by the
compulsory form of preprosecution discovery envisaged by the Combines Investigation Act as it would
be by evidence in Court or by judicial discovery.
Thurlow, J., added the following at p. 80 C.C.C., p. 723
D.L.R., [p. 195 [1975] F.C.]:
Secondly, it appears to me that the confidential character of
such communications, whether oral or in writing, comes into existence at the
time when the communications are made. As the right to protection
[page 887]
for the confidence, commonly referred to as legal professional
privilege, is not dependent on there being litigation in progress or even in
contemplation at the time the communications take place, it seems to me that
the right to have the communications protected must also arise at that time and
be capable of being asserted on any later occasion when the confidence may be
in jeopardy at the hands of anyone purporting to exercise the authority of the
law.
The reasoning of Chief Justice Jackett and Thurlow, J., in the
case of an inquiry under the Combines Investigation Act, R.S.C. 1970, c.
C-23, is even more compelling, in my view, in the case of a search warrant
issued by a Justice under s. 443 of the Criminal Code. If the privilege
could not be invoked to prevent the seizure and examination of documents under
a search warrant, the Crown would be free in any case to seize and examine the
files and brief of defence counsel in a criminal prosecution. It would be small
comfort indeed to the accused and to his counsel to discover that his only
protection in such a case was to prevent the introduction into evidence of the
documents that had been seized and examined. Such a result, in my view, would
be absurd.
Chief Justice Jackett quoted extensively in his reasons from
the decision of Munroe, J., of the British Columbia Supreme Court in Re
Director of Investigation and Research and Canada Safeway Ltd. (1972), 26
D.L.R. (3d) 745, 6 C.P.R. (2d) 41, [1972] 3 W.W.R. 547, in which the same
result was reached. That decision, in my view, contains further persuasive
reasons for upholding the position taken by the applicants that the solicitor-and-client
privilege may be invoked to prevent seizure under a search warrant.
I find, accordingly, that the applicant is entitled to raise
the solicitor-and-client privilege at this stage in the proceeding, as a ground
for quashing the search warrant for lack of jurisdiction on the part of the
Justice.
I am of this
view and would add, by way of clarification, that the justice of the peace
should raise the question himself and, where necessary, find that he has no
jurisdiction to authorize the search.
(b) As a
substantive rule
In cases where
the justice of the peace has the necessary jurisdiction to authorize the
search, he should, in exercising that jurisdiction, take into
[page 888]
account the need to protect the
fundamental right of a lawyer's client to have his communications kept
confidential. This may arise where evidence is being sought of communications
which, although made in confidence to a lawyer, are no longer protected because
they were made in circumstances such that they fall within an exception to the
rule; or where a lawyer's office is to be searched for things covered by para.
(a) or (c) of s. 443(1) (for example, stolen goods). Although the rule of
evidence seems to be applicable only with respect to para. (b) of s. 443(1),
the substantive rule will apply to any search affecting the right to
confidentiality, regardless of which of the paragraphs of s. 443(1) such search
is to be made under. In either case the search should be limited to what is
absolutely necessary in order to seize the things for which the search was
authorized. A lawyer's file may contain a host of information concerning a
client, some of which has remained confidential even though other information
is no longer so since it falls within an exception to the rule. Even more
serious is the fact that a lawyer's office contains confidential files
pertaining to other clients which have nothing to do with the crime that is to
be proved or with the things searched for under s. 443(1)(a) and (c).
Some would say that the justice
of the peace has no discretion to refuse to issue a search warrant or to impose
terms of execution once the requirements of form and substance in s. 443 have
been met. They would argue that in s. 443 the word "may" means
"must" and does not confer any discretion. According to this
interpretation, the justice of the peace may issue a warrant only if he is satisfied
that there is reasonable ground to believe that one of the things provided for
in s. 443(1) is to be found in the place sought to be searched, but must do so
as soon as he is so satisfied, and the only condition of execution on the
premises that he may impose is set out in s. 444 of the Code:
444. A warrant issued under section 443 shall be executed by
day, unless the justice, by the warrant, authorizes execution of it by night.
[page 889]
Others, on the contrary, would
say that generally the justice of the peace has the discretion to refuse the
warrant, so long as this discretion is exercised judicially and so long as the
decision to refuse the warrant is not capricious or arbitrary (Carter, R.F., The Law Relating to Search Warrants, 1939, at p. 52; Fontana, J.A., The Law of Search Warrants in Canada, 1974, at pp. 7 and 51 et seq.; Re Pacific Press Ltd. and The Queen et al. (1977), 37 C.C.C. (2d) 487).
I come down on the side of the
discretion, as it allows more effective judicial control of the police.
Searches are an exception to the oldest and most fundamental principles of the
common law, and as such the power to search should be strictly controlled. It
goes without saying that the justice may sometimes be in a poor position to
assess the need for the search in advance. After all, searches, while
constituting a means of gathering evidence, are also an investigative tool. It
will often be difficult to determine definitively the probative value of a
particular thing before the police investigation has been completed. Be that as
it may, there are places for which authorization to search should generally be
granted only with reticence and, where necessary, with more conditions attached
than for other places. One does not enter a church in the same way as a lion's
den, or a warehouse in the same way as a lawyer's office. One does not search
the premises of a third party who is not alleged to have participated in the
commission of a crime in the same way as those of someone who is the subject of
such an allegation. (See on this subject Fontana, J.A., The Law of Search Warrants in Canada, at p. 174.)
The justice of the peace, in my
view, has the authority, where circumstances warrant, to set out execution
procedures in the search warrant; I would even go so far as to say that he has
the right to refuse to issue the warrant in special circumstances, such as
those found in Re Pacific Press
Ltd. and The Queen et al., supra.
That case involved a search of
a newspaper office for information gathered by the newspaper staff. Neither the
newspaper staff nor the newspaper itself were accused of having been involved
in the commission of an offence. In view of the
[page 890]
special situation of a newspaper in light of ss. 1(f) and 2 of
the Canadian Bill of Rights, R.S.C. 1970, Appendix III, Nemetz C.J. of the
British Columbia Supreme Court quashed the search warrant issued by the justice
of the peace, concluding as follows (at p. 495):
The issuing of any search warrant is a serious matter,
especially when its issuance against a newspaper may have, as it did, the
effect of impeding its publication. To use the words of my distinguished
predecessor in United Distillers Ltd. (1948), 88 C.C.C. 338, [1947]
3 D.L.R. 900, the
Justice of the Peace 'should have reasonable information before him to entitle
him to judicially decide whether such warrant should issue or not'. In my opinion, no such reasonable information was before
him since there was no material to show:
1. whether a reasonable alternative source of obtaining
2. the information was or was not available, and if available,
that reasonable steps had been taken to obtain it from that alternative source.
In my opinion, the bringing of an application for a search
warrant in these circumstances was an abuse of the process of the Court. I,
therefore, quash the warrants.
Re Pacific Press Ltd. involved
a search for things provided for in para. (b)
of s. 443(1), that is,
evidence; it goes without saying that the same requirements do not apply in the
case of things provided for in
paras. (a) and (c) of s. 443(1).
It could be advanced that the two conditions set out by Nemetz
C.J. should be met before a warrant is issued whenever a search is sought to be
conducted, under 443(1)(6), of premises
occupied by an innocent third party which are not alleged by the information to
be connected in any way with the crime. It is not necessary for purposes of
this appeal to decide that point. It is sufficient to say that in situations
such as the one in Re Pacific Press Ltd., where
the search would interfere with rights as fundamental as freedom of the press,
and, as in the case at bar, a lawyer's client's right to
[page 891]
confidentiality, the justice of
the peace may and should refuse to issue the warrant if these two conditions
have not been met, lest he exceeds the jurisdiction he had ab initio. I would add one qualification to these two
conditions. The reasonable alternative referred to is not an alternative to the
method of proof but to the benefits of search and seizure of the evidence. As I
have already stated, a search warrant is not only a means of gathering evidence
but also an investigative tool. Therefore a determination of what is reasonable
in each case will take into account the fact that a search makes it possible
not only to seize evidence but also to ascertain that it exists, and even
sometimes that the crime was in fact committed and by whom. Seizure makes it
possible to preserve the evidence.
Moreover, even if the
conditions are met, the justice of the peace must set out procedures for
the execution of the warrant that reconcile protection of the interests this
right is seeking to promote with protection of those the search power is
seeking to promote, and limit the breach of this fundamental right to what is
strictly inevitable. This is also true of searches under 443(1)(a) or (c), as soon as they threaten a fundamental
right.
Generally speaking, where the
search is to be made of a lawyer's office, in order to search for things
provided for under para. (a), (b) or (c)
of s. 443(1), the justice of the peace should be particularly
demanding. Where it is a question of evidence (443(1)(b)), although satisfied that there is such evidence on the premises, he should
only allow a lawyer's office to be searched if in addition he is satisfied that
there is no reasonable alternative to a search. It will sometimes be desirable,
as soon as the informant initiates proceedings, for the justice of the peace to
see that the district Crown attorney is notified, if he is not aware of such
proceedings, as well as the Bar authorities. With their assistance he should
normally be more easily able to decide with the police on search procedures
acceptable to everyone that respect the law firm's clients' right to
confidentiality without depriving the police of their right to search for
evidence of the alleged crime.
[page 892]
In this respect he could take
guidance from the provisions of the Income
Tax Act, 1970-71-72
(Can.), c. 63, s. 232, adapting them
to fit the particular case, of course.
Moreover, the search should be
made in the presence of a representative of the Bar, where possible.
It is encouraging to read the
numerous cases reported in the law reports and see that in almost all cases it
was possible to decide upon appropriate execution procedures with the consent
of the various parties involved (police, Bar, etc.), without the case law
having at the time definitively decided that the justice of the peace had the
authority to impose any. This seems to me to have been done in the case at bar,
since, although the record is not very clear as to the reasons, it is apparent
that the search was conducted in a special manner, with the cooperation of the
police and the Bar, and that the documents seized were placed in a sealed
envelope without having been examined.
Some have expressed the view
that Parliament rather than the courts should set guidelines for searching
lawyers' offices. (See the statements of the Ontario Court of Appeal in Re Borden & Elliott and The Queen (1975), 30 C.C.C. (2d) 337, at p. 348.) Be that as it may, I for
my part hope that the courts in the provinces, in view of the discretion of the
justices of the peace and the willingness of everyone so far to recognize the
importance of the confidentiality of communications made to a lawyer by his
client, and their willingness and the need to preserve it, will rectify this
legislative gap by developing, through rules of court or informally, by means
of a uniform practice, a regional procedure that will take account of local
circumstances; they are certainly in an eminently better position to do so than
this Court.
CONCLUSION
In summary, a lawyer's client
is entitled to have all communications made with a view to obtaining legal
advice kept confidential. Whether communications
[page 893]
are made to the lawyer himself or
to employees, and whether they deal with matters of an administrative nature
such as financial means or with the actual nature of the legal problem, all
information which a person must provide in order to obtain legal advice and
which is given in confidence for that purpose enjoys the privileges attached to
confidentiality. This confidentiality attaches 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.
There are certain exceptions to
the principle of the confidentiality of solicitor-client communications,
however. Thus communications that are in themselves criminal or that are made
with a view to obtaining legal advice to facilitate the commission of a crime
will not be privileged, inter alia.
The fundamental right to
communicate with one's legal adviser in confidence has given rise to a rule of
evidence and a substantive rule. Whether through the rule of evidence or the
substantive rule, the client's right to have his communications to his lawyer
kept confidential will have an effect when the search warrant provided for in
s. 443 Cr. C. is being issued and executed.
Thus the justice of the peace
has no jurisdiction to order the seizure of documents that would not be
admissible in evidence in court on the ground that they are privileged (the
rule of evidence).
Before authorizing a search of
a lawyer's office for evidence of a crime, the justice of the peace should
refuse to issue the warrant unless he is satisfied that there is no reasonable
alternative to the search, or he will be exceeding his jurisdiction (the
substantive rule). When issuing the warrant, to search for evidence or other things,
he must in any event attach terms of execution to the warrant designed to
protect the right to confidentiality of the lawyer's clients as much as
possible.
[page 894]
Applying these principles to
the case at bar, I have arrived at the following conclusions.
First, all information
contained in the form that applicants for legal aid must fill out is provided
for the purpose of obtaining legal advice, is given in confidence for that
purpose and, consequently, is subject to the applicant's fundamental right to
have such communications kept confidential and, as such, is protected by the
rule of evidence and the substantive rule.
It is alleged in the
information laid that the communications made by Ledoux with respect to his
financial means are criminal in themselves since they constitute the material
element of the crime charged. This is an exception to the principle of
confidentiality and these communications are accordingly not protected (this
does not mean that we are expressing an opinion as to the validity of the
allegations in the information). However, since the allegation concerns only
the information dealing with the applicant's financial means, all other
information on the form remains confidential.
Since the part of the form
dealing with Ledoux's financial situation was as an exception admissible in
evidence, the justice of the peace had jurisdiction to order its seizure.
Acting within his jurisdiction
with regard to the rule of evidence, the justice of the peace also exercised
his discretion to issue a warrant judicially having regard to the substantive
rule. As a result of the refusal of the legal aid bureau's staff and lawyers to
disclose to the investigators the contents of the form, or of the oral
statements made to them by Ledoux concerning his financial situation, there was
no reasonable alternative to a search. How otherwise could the investigators
ascertain that Ledoux's statements were fraudulent? Perhaps, as a result of
their investigation, they knew that Ledoux was not eligible for legal aid in
view of his financial means, but the crime of which they suspected him and
concerning which they were entitled to continue the investigation was that of
having concealed his means, ineligibility not being a crime in itself.
[page 895]
I do not know whether the
justice of the peace was the originator of the procedure followed for the
search and seizure or whether there was an agreement between counsel. In any
event, the manner of proceeding in the case at bar was, again having regard to
the substantive rule, proper and acceptable and the justice of the peace was or
would have been by law empowered to and justified in making it a condition of
granting the warrant.
There is one problem, however.
The form seized may contain privileged information. 1 am of the view that the
justice of the peace could have, in the presence of everyone—the Crown, the
representative of the Bar and the Legal Aid representative—opened the envelope
and examined the form to determine whether it contained anything confidential
and, if not, dealt with it in accordance with the law like any other thing
seized. If he had discovered that the form contained confidential information,
he could have (at least this is one of the ways of proceeding) photocopied the
part relevant to the applicant's financial means and dealt with that portion of
the form like any other thing seized by placing it on the file. He could have
placed the original of the document in a sealed envelope also placed on file,
ordering that it not be examined without a judge's order.
In the case at bar, if the
information on the back of the form in fact consists of professional notes, as
indicated by the form, they are confidential. This would still have to be
verified, however. As for the front of the form, most of the information
requested is relevant to the applicant's financial situation, although some
only indirectly. This is not the case, however, with the information required
on the parts of the form that I have identified with the letters A and B, where
the information essentially concerns the "nature of the case" or the
"probable existence of a right". I am therefore of the view that the
judge, after verifying the back of the form, and if he ascertains that it
contains professional notes, should have the front of the form, except parts A
and B, photocopied, and deal with the photocopies and the original of the
document as suggested, that is, place the photocopies on the Court file and
place the original in a sealed
[page 896]
envelope, place the envelope on
the file and order the Court staff not to open it or allow it to be opened
without a judge's order. The sealed envelope will eventually be returned to the
legal aid bureau, unless Marcellin Ledoux disputes the authenticity of the
photocopy should an inquiry or trial be held; were Ledoux to do so, the judge
presiding at the trial or the preliminary inquiry would be fully justified in
opening the envelope and allowing those concerned to see the form, since Ledoux
would then, in my view, have himself by his allegations made it impossible to
reconcile his right to confidentiality for the better administration of
criminal justice.
Before concluding, I should
state that the procedure will vary from one case to another. Here the good
faith of counsel was in no way at issue since, as alleged by the police, they
were not accomplices of their client but rather his victims. Clearly different
execution procedures should be provided for where the information laid alleges
that the lawyer participated in the crime. I would also like to add that the
justice of the peace from whom a warrant to search a lawyer's office is being
sought, if he is not a judge by profession, would be well advised, although in
no way obliged to do so, to refer the applicant to a judge of a court of
criminal jurisdiction or even a judge of a superior court of criminal
jurisdiction.
For these reasons I would
dismiss this. appeal and refer the matter back to the justice of the peace,
ordering him to deal with the envelope and its contents as stated above.
Appeal dismissed.
Solicitors for the appellants: Corbeil, Meloche, Larivière
& Laberge, Montreal.
Solicitor for the respondent and for the intervener the
Attorney General of the Province of Quebec: Pierre Robert, Montreal.
Solicitors for the intervener the
Commission des services juridiques: Geoffrion, Prud'homme, Montreal.