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

Date: 201402 12 Docket: 13/46 Citation: R. v. A.B. , 2014 NLCA 8 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : HER MAJESTY THE QUEEN as represented by the Attorney General APPELLANT AND : A. B. RESPONDENT AND: LAW SOCIETY OF NEWFOUNDLAND AND LABRADOR INTERVENOR Coram: Welsh, Harrington and Hoegg JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador, Trial Division 201201(G) 5379 and 201201(G) 5381 Appeal Heard: October 18, 2013 Judgment Rendered: February 12, 2014 Reasons for Judgment by Harrington J.A. Concurred in by Welsh and Hoegg JJ.A.

Counsel for the Appellant: David J. Bright Q.C. and Brian P. Casey Counsel for the Respondent: Eric Sutton Counsel for the Intervenor (Law Society of Newfoundland and Labrador): Randolph J. Piercey Q.C. Counsel for Philip Wayne Pynn: Mark J.

Gruchy Harrington J.A.: [ 1 ] The Crown appeals orders of a Trial Division judge in the nature of certiorari quashing two production orders granted by two different Provincial Court judges directing two telecommunications companies to produce cellular phone records in one instance and residential landline telephone records in the second instance pertaining to the respondent, A.B., a lawyer, during the course of a murder investigation. The decision of the Trial Division judge was based upon findings that the Crown failed to: (

i) ensure that the necessary steps were taken to protect solicitor-client privilege, and (ii) provide timely notice to the respondent, who was the lawyer for Pynn, a known suspect in the case, or a representative of the Law Society of Newfoundland and Labrador (Law Society) before execution of the orders. It was believed that more than one person was directly involved in the murder. Pynn was the suspect known at the time.

For the reasons which follow, the Crown’s appeal is dismissed. [ 2 ] The matter of the identification of parties in the style of cause of this proceeding was not addressed by the reviewing justice in his reasons nor was it raised by counsel in any of the facta or oral submissions before this Court in the context of solicitor-client privilege or otherwise. As a result, any legal considerations regarding identification of a lawyer in the style of cause, where solicitor-client privilege or other concerns regarding identification of an individual are engaged, are left for another day.

INTRODUCTION [ 3 ] On September 22 and November 2, 2011 respectively, the orders requiring production of cellular and residential landline phone records to a specific member of the Royal Newfoundland Constabulary (RNC) were issued firstly to Telus Communications (Telus Order) and secondly to Rogers Communications (Rogers Order). [ 4 ] The Informations to Obtain (ITOs) raised the prospect that the information sought was privileged communications.

The Trial Division judge wrote at paragraphs 9 and 10: There was a high probability that information in the phone records produced for both Production Orders was privileged communications. It was therefore necessary that the Provincial Court Judges who issued the Production Orders assume that the information sought by the Production Orders included privileged communications.

The ITOs relied upon by the Provincial Court Judges disclosed that A.B. was a lawyer, that she had a solicitor-client relationship with the murder suspect, and that she had prior solicitor-client relationships with one or more other persons connected to the police investigation. The ITO dealing with the Production Order for the cellular records stated that it is a fair assumption that the data included calls to and from clients. The cellular records included text messages, names, numbers, dates, and times of calls.

The landline records did not include “communication” in the pure sense but, for reasons detailed below, the names, numbers, dates and times of landline calls are still privileged. The Telus Order [ 5 ] The records produced under the Telus Order included text messages generated on a cellular phone provided by Telus and other data available for the period from July 9 to July 11, 2011. The production by Telus included printouts of “call details, roaming call detail, text messages records, wireless subscriber data and related records”. The order provided that the records were to be copied onto

an “electronic medium”, sealed in a packet and stored in a location accessible only by the designated RNC inspector prior to vetting by a Trial Division judge. Specifically, the terms and conditions of the order stated: 1. TELUS Communications shall produce a true copy of all information in a legible readable or otherwise accessible and usable form; 2.

TELUS Communications and any employee, servant or agent shall not directly or indirectly disclose or permit disclosure of the content, existence or operation of this order, in any manner, or to any person except as may be necessary for the purposes of compliance with its terms or obtaining the advice or assistance of legal counsel unless otherwise ordered by a Court of competent jurisdiction; 3. Nothing in this order shall be so construed as to require the production of any information which is subject to solicitor client privilege; 4.

The data requested from TELUS Communications shall be forwarded to [Inspector ______], a peace officer, of the Royal Newfoundland Constabulary, St. John’s , Newfoundland and Labrador; 5. Once [Inspector ______] is in possession of the data received from TELUS Communications, the data will be copied onto an electronic medium, sealed in a packet and stored in a safe and secure location that is only accessible to [Inspector ______]. The data will not be viewed by [Inspector ______] or any other peace officer at this time. 6.

Once the data received from TELUS Communications has been sealed and stored in a safe and secure location by [Inspector ______] an application will be made before the Supreme Court of Newfoundland and Labrador requesting a Supreme Court Justice to review the data and make a determination if the data is privileged or not. 7. All data that is deemed not to be privileged may be used in the normal course of the investigation. 8. These documents must be accompanied by an Affidavit prepared in accordance with

Section 487.012 (

a) of the Criminal Code of Canada . [ 6 ] The RNC officer, who was specifically identified as not being a member of the murder investigation team, was ordered not to view the data “at this time”. However, of considerable relevance to this matter is the fact that the terms of the order contemplated that the RNC officer would copy and seal the data and store it in a location accessible to him, without any provision for oversight by A.B. or a representative of the Law Society during the process. [ 7 ] Initially, the RNC obtained a general warrant directed to Telus. However, it is worthy of note that Telus insisted that it would only respond to a production order issued under

section 487.012(1) of the Criminal Code . Rogers Order [ 8 ] The Rogers Order directed production of billing records of incoming and outgoing calls including all unpublished numbers associated with the respondent’s landline telephone at her residence for the same three-day period specified in the Telus Order. The Rogers Order mirrored the Telus Order and was composed of provisions identical to clauses 1, 2, 3 and 8 of the Telus Order. The ITO assumed that these records would not be privileged since they listed only records of incoming and outgoing call numbers.

Notice to the Respondent [ 9 ] The respondent was not notified that the orders were being sought and only received notice of their existence months after they

were issued and executed. The rationale for the delay in giving notice to the respondent and her client, Pynn, the known murder suspect, was explained by the Crown in its factum: [45] Pynn and [the respondent] were not notified at the time the production order was sought to protect the ongoing investigation. At the time the order for the text messages was sought, the police had not arrested [the fourth suspect] and his whereabouts were uncertain.

The police were concerned (among other things) that he might not give a statement if he was aware they had phone records establishing calls between Pynn’s telephone and [the fourth suspect]’s girlfriend’s phone. Notifying Pynn of the fact some of his messages were obtained by a Production Order in September might result in notice to… [the fourth suspect].

Once [the fourth suspect] was arrested an application was made to the Court on notice to Pynn and [the respondent] and others asking to have a judge establish a time and protocol to vet the text messages. [ 10 ] Moreover, the RNC suspected that the respondent shared a personal relationship with her client, the known suspect Pynn.

This suspicion arose as the RNC had the respondent’s residence under surveillance for at least 16 hours on July 11, 2011 during which time the suspect was not seen leaving her residence causing the police to believe that the suspect was in the respondent’s residence from 11:00 pm, July 10, 2011 until his arrest the following day.

The RNC observed the respondent kissing the suspect while leaving her residence shortly before he surrendered into the custody of the RNC on July 11, 2011. [ 11 ] The RNC believed that the respondent’s client may have used her cell phone or one owned by her brother, who is also a lawyer, as well as the respondent’s residential landline during the period he was at the respondent’s residence.

The RNC also believed that text messages may have been exchanged between the known suspect and the fourth suspect on a cellphone owned by the respondent or her brother in the time period following the murder which might assist in confirming the fourth suspect’s identity. The RNC raised a concern about any delay in the retrieval of these records because of short retention periods maintained by the telecommunications company.

Decision Under Appeal [ 12 ] The Trial Division judge granted certiorari quashing the orders on the grounds that the issuing Provincial Court judges failed “to impose adequate considerations to minimize the intrusion on privileged information,” which in turn meant that they “failed to exercise their discretion [judicially]”.

He ordered that the documents and other materials obtained from Telus and Rogers be transferred to the respondent and that “the duplicate electronic copies…be purged from electronic devices or machines”. [ 13 ] The Trial Division judge acknowledged that the application for certiorari was “atypical” since the respondent, a lawyer, was not the party directly affected by the orders, who would normally be an accused person.

He noted that the ITOs filed by the Crown acknowledged the existence of a solicitor-client relationship and perhaps a personal relationship between the respondent and the known murder suspect and that the known suspect had a connection to others thought to be directly involved in the murder.

The ITO grounding the application for the Telus Order acknowledged that an assumption could be made that the data the RNC was seeking could include information subject to privilege. [ 14 ] The analysis of the Trial Division judge focused on the fact that advance notice of the application seeking the orders was not given either to the respondent or to a representative of the Law Society.

Additionally, a condition in the Telus Order that the relevant cellular phone records were to be sealed was held to be insufficient protection of the privilege since the terms of the Order did not ensure that the RNC officer could not view the Telus data.

Indeed, the order permitted the officer to copy the data onto an “electronic medium” before sealing and the subsequent delivery to a Trial Division judge for vetting. [ 15 ] The Trial Division judge also held that a general condition in the Rogers Order which stipulated that its terms were not to be construed as overriding solicitor-client privilege did not constitute sufficient protection of the privilege.

He made this finding on the basis that the receipt and delivery of the data by the RNC officer from Rogers took place without oversight, either by the respondent or a representative of the Law Society. [ 16 ] The Trial Division judge found that the fact that the data sought was not located in a law office at the time of issuance and execution of the orders was not a relevant consideration as to whether or not privilege applied. Further, he held that notice should have been given to the respondent or in the alternative to the Law Society when the orders were being executed.

He rejected the Crown’s position that privilege did not apply in these circumstances. He held that solicitor-client privilege must be afforded maximum protection and cited the fifth maxim of paragraph 10 of Maranda v. Richer , 2003 SCC 67 , [2003] 3 S.C.R. 193 where LeBel J. wrote in part:

5. Every effort must be made to contact the lawyer and the client at the time of the execution of the search warrant. Where the lawyeror the client cannot be contacted, a representative of the Bar should be allowed to oversee the sealing and seizure of documents. (Emphasis added.) ISSUE [17] The issue on this appeal is whether the Trial Division judge erred in the exercise of his discretion by issuing orders forcertiorari on the facts underpinning the orders. [18] Resolution of this issue involves deciding whether the principles set out in Lavallee v.

Canada (Attorney General), 2002 SCC61, [2002] 3 S.C.R. 209 require notice to a suspect’s legal counsel or to a Law Society representative when a production order involvingpotentially privileged information is executed. RIGHT OF APPEAL [19] Both the Crown and third parties, such as the respondent in this case, have a right of appeal under section 784(1) of theCriminal Code from a decision granting or refusing certiorari: An appeal lies to the court of appeal from a decision granting or refusing the relief sought in proceedings by way of mandamus,certiorari or prohibition. See also Canadian Broadcasting Corp. v.

Newfoundland and Labrador, 2006 NLCA 21, 254 Nfld. & P.E.I.R 29, at paras. 10-11; R. v.Canadian Broadcasting Corporation, 2007 NLCA 62, 270 Nfld. & P.E.I.R 117, at para. 15; and R. v. Jobin, (SCC),[1995] 2 S.C.R. 78, at para. 28. STANDARD OF REVIEW [20] Orders granting or refusing third-party applications for certiorari are to be reviewed for errors of law and jurisdiction (R. v.Jobin, (SCC), [1995] 2 S.C.R. 78; Dagenais v. Canadian Broadcasting Corporation, (SCC), [1994] 3S.C.R. 835).

ANALYSIS Applicable Solicitor-Client Privilege Principles [21] The Supreme Court of Canada in Lavallee set out the common law principles to be considered by a judge or justice whenissuing search warrants applicable to law offices; Justice Arbour, writing for the Court at paragraph 49, stated the following principlesthat are relevant to this case: 1. No search warrant can be issued with regards to documents that are known to be protected by solicitor-client privilege. 2.

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

3. When allowing a law office to be searched, the issuing justice must be rigorously demanding so to afford maximum protection ofsolicitor-client confidentiality. 4. Except when the warrant specifically authorizes the immediate examination, copying and seizure of an identified document, alldocuments in possession of a lawyer must be sealed before being examined or removed from the lawyer’s possession. 5. Every effort must be made to contact the lawyer and the client at the time of the execution of the search warrant.

Where thelawyer or the client cannot be contacted, a representative of the Bar should be allowed to oversee the sealing and seizure of documents. 6. The investigative officer executing the warrant should report to the justice of the peace the efforts made to contact all potentialprivilege holders, who should then be given a reasonable opportunity to assert a claim of privilege and, if that claim is contested, to havethe issue judicially decided. 7.

If notification of potential privilege holders is not possible, the lawyer who had custody of the documents seized, or anotherlawyer appointed either by the Law Society or by the court, should examine the documents to determine whether a claim of privilegeshould be asserted, and should be given a reasonable opportunity to do so. 8. The Attorney General may make submissions on the issue of privilege, but should not be permitted to inspect the documentsbeforehand.

The prosecuting authority can only inspect the documents if and when it is determined by a judge that the documents arenot privileged. [22] The protection demanded by Lavallee is afforded because of the central importance of solicitor-client privilege in Canadianlaw. In Canada (Privacy Commission of Canada) v. Blood Tribe Department of Health, 2008 SCC 44, [2008] 2 S.C.R. 574, at para. 9,Binnie J. stated: Solicitor-client privilege is fundamental to the proper functioning of our legal system.

The complex of rules and procedures is such that,realistically speaking, it cannot be navigated without a lawyer’s expert advice. It is said that anyone who represents himself or herselfhas a fool for a client, yet a lawyer’s advice is only as good as the factual information the client provides. Experience shows that peoplewho have a legal problem will often not make a clean breast of the facts to a lawyer without an assurance of confidentiality “as close toabsolute as possible”: [S]olicitor-client privilege must be as close to absolute as possible to ensure public confidence and retain relevance.

As such, it will onlyyield in certain clearly defined circumstances, and does not involve a balancing of interests on a case-by-case basis. (R. v. McClure, [2001] 1 S.C.R. 445, 2001 SCC 14, at para. 35, quoted with approval in Lavallee, Rackel & Heintz v. Canada (AttorneyGeneral), [2002] 3 S.C.R. 209, 2002 SCC 61, at para. 36.) It is in the public interest that this free flow of legal advice be encouraged. Without it, access to justice and the quality of justice in thiscountry would be severely compromised. The privilege belongs to the client not the lawyer. In Andrews v.

Law Society of BritishColumbia, (SCC), [1989] 1 S.C.R. 143, at p. 188, McIntyre J. affirmed yet again that the Court will not permit a solicitorto disclose a client’s confidence. [23] This privilege arises upon the first contact between a prospective client and a lawyer: …the scope of the privilege has been described as attaching to all communications made within the framework of the solicitor-clientrelationship which arises as soon as the potential client takes the first steps, and consequently even before the formal retainer isestablished. (Descôteaux v.

Mierzwinski, (SCC), [1982] 1 S.C.R. 860, at p. 893 affirmed in Pritchard v. Ontario Human Rights

Commission, 2004 SCC 31 , [2004] 1 S.C.R. 809, at para. 16 .) Application of Privilege to a Lawyer’s Residence and Telecommunications Companies’ Property and Data [ 24 ] The issues on appeal engage the law respecting the issuance and execution of production orders under

section 487.012 of the Criminal Code and the protection of solicitor-client privilege. The

section reads in material part as follows: 487.012

(1) A justice or judge may order a person , other than a person under investigation for an offence referred to in paragraph (3)(a), (

a) to produce documents, or copies of them certified by affidavit to be true copies, or to produce data ; or (

b) to prepare a document based on documents or data already in existence and produce it .

(2) The order shall require the documents or data to be produced within the time, at the place and in the form specified and given (

a) to a peace officer named in the order; or (

b) to a public officer named in the order, who has been appointed or designated to administer or enforce a federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament.

(3) Before making an order, the justice or judge must be satisfied, on the basis of an ex parte application containing information on oath in writing, that there are reasonable grounds to believe that (

a) an offence against this Act or any other Act of Parliament has been or is suspected to have been committed ; (

b) the documents or data will afford evidence respecting the commission of the offence; and (

c) the person who is subject to the order has possession or control of the documents or data .

(4) The order may contain any terms and conditions that the justice or judge considers advisable in the circumstances, including terms and conditions to protect a privileged communication between a lawyer and their client …

(5) The justice or judge who made the order, or a judge of the same territorial division, may revoke, renew or vary the order on an ex parte application made by the peace officer or public officer named in the order. (Emphasis added.) [ 25 ] The Crown submits that there are key differences in how searches of telecommunications companies’ data are to be carried out as compared to the law office searches discussed in Lavallee and Maranda .

The Crown submits that solicitor-client privilege is not engaged in this case because the orders did not seek records located at the physical premises of a law office but merely sought production of records and data from two telecommunications companies. The Crown argues that the police could not accidentally see data they were not intended to see in this case because they did not conduct the searches. Telus was expected to carry out a search of its own records which were already in its possession.

In such circumstances, the Crown submits that there is no need for oversight by legal counsel or a Law Society representative.

[ 26 ] The Crown also argues that no risk to solicitor-client privilege arose at the execution of a production order because, unlike the circumstances affecting a search warrant, judicial vetting occurs after the execution of the production order, thus providing sufficient protection of the privilege.

With respect, I do not believe that this submission is persuasive since oversight during execution of the order, especially during copying and sealing, is the primary concern (see Lavallee and Maranda ). [ 27 ] Further, the Crown says that there is no disruption of the lawyer’s office or practice, which was the mischief addressed by Watt J., as he then was, in the case of R. v. Costa, [2005] O.J.N.C. 3980 (Ont. Sup.

Ct.). [ 28 ] As an Intervenor, the Law Society argues that the Crown has incorrectly attempted to distinguish the status of a search warrant from that of a production order by submitting that the safeguards demanded in Lavallee and in Maranda do not apply to production orders in the same manner. The Law Society argues that search warrants and production orders fall under the same part of the Criminal Code : “Part XV – Special Procedures and Powers”. In order to grant a search warrant, the justice must be satisfied that the place to be searched contains evidence relating to an offence (see

section 487 of the Criminal Code ). The same issues must be addressed by a justice or judge while issuing a production order (see

section 487.012 of the Criminal Code ). The Law Society submits that these enactments by Parliament demonstrate a concern with the protection of solicitor-client privilege, noting in particular

section 487.012(4) where Parliament expressly legislated that a production order may contain terms and conditions that a justice or judge considers advisable to protect a privileged communication between a lawyer and a client. I agree with the Law Society. [ 29 ] The Law Society submits that the orders here are at odds with Parliament’s intention to protect privilege to the extent that the Telus Order directed that the cellular phone records be copied by the designated police officer responsible for the execution of that order.

I agree with the Trial Division judge’s conclusion that the language of the Telus Order: …creates the risk of inadvertent disclosure even if the Inspector tries not to look at the computer screen or hard data while copying. [ 30 ] While the Crown concedes that the nature of a production order constitutes a search, I reject its submission that the Lavallee principles apply only to searches of law offices.

The Trial Division judge similarly disagreed with this submission by finding that the practice of criminal law by lawyers such as the respondent in Canada is a virtual 24 hour, 7 day a week occupation, particularly given the means of communication provided by cellular telephones including text messaging whereby hand-held devices provide and record instantaneous communication between client and counsel. I accept this rationale. [ 31 ] The Lavallee principles have been applied to “any place where privileged documents may reasonably be reported to be located,” see Festing v.

Canada (Attorney General), 2003 BCCA 112 , 11 B.C.L.R. (4th) 83, at para. 24 ; see also R. v. Qoneshi, 2006 ABQB 14 , 54 Alta. L.R. (4th) 357; R. v. Murtha , 2009 NSSC 342 , 286 N.S.R. (2d) 122, at para. 16 . In Festing , the British Columbia Court of Appeal explained that the privilege can apply to a lawyer’s home, a lawyer’s office in multi-disciplinary business premises, the office of in-house counsel for a business, and storage facilities where lawyers store their files.

The Court concluded at paragraph 24 that it: …offers these examples as just that — examples of places where the Lavallee guidelines would apply. Counsel agree that there is little utility in attempting to define all such places since the practice of law, and the manner in which [lawyers] store client information (for example, on computer hard drives and disks), continue to expand and diversify. [ 32 ] The Court in Festing also held that

section 488.1(1) of the Code which had previously been struck down by the Supreme Court in Lavallee had nevertheless defined a “document” eligible for privilege protection as follows: [25] …Documents is the word used in the Lavallee guidelines.

Further, the word "document" was given an expansive definition in s. 488.1(1) (as it then was) by reference to s. 321 of the Code which provides, in part: " document " means any paper, parchment or other material on which is recorded or marked anything that is capable of being read or understood by a person, computer system or other device , and includes a credit card, but does not include trade marks on articles of commerce or inscriptions on stone or metal or other like material; We would adopt that definition of "document" as applying in our expanded definition of the words "law office" for the purpose of applying the Lavallee guidelines.

(Emphasis added.) [ 33 ] Finally, that Court concluded: [27] …we agree with counsel for the intervenor and for the appellants that the legal protection afforded solicitor-client privilege does not begin and end at the door of a law office.

Rather, those applying for, issuing and executing search warrants should be alive to ensuring solicitor-client privilege is protected, to the greatest extent possible, whenever the circumstances so warrant . (Emphasis added.) [ 34 ] Consequently, I conclude that it is the nature of the communications and the solicitor-client relationship that give rise to the need to protect a possible claim of solicitor-client privilege and not simply a particular physical location such as a lawyer’s office.

The Trial Division judge did not err in finding that solicitor-client privilege was engaged even though the orders were not directed at the respondent’s law office but rather at the use of cellular telephone and landline phone equipment belonging to the respondent and her brother, a lawyer, that was suspected of being utilized by the respondent’s client at the respondent’s residence over a two-and-a-half-day period. [ 35 ] It is my conclusion that privilege may also be so broad as to apply to the Rogers Order, which led to disclosure of telephone numbers recorded from the landline at the respondent’s residence.

The Crown submits that there was no risk to privilege.

By contrast, the respondent and the Law Society submit that names can be attached to telephone numbers without difficulty thus providing evidence that certain persons communicated at particular times and dates, information in which the RNC was clearly interested. [ 36 ] The Crown also submits that there is no authority holding that telephone numbers recorded on the respondent’s home phone are privileged and submits there was no evidence indicating that any client of the respondent called her residential landline during the period covered by the Rogers Order. [ 37 ] The Law Society submits that the ITO relating to the Rogers Order acknowledged that the privilege likely applied.

Schedule B of the ITO, at paragraph 12, stated: Whereby phone number [ - - -] is believed to be the residential line of (A.B.) it would be fair to assume that there will be a number of calls made throughout the requested time frame (July 9th – 11th, 2011) both to and from clients. [ 38 ] The Trial Division judge made reference to and relied upon this at paragraph 12 of his reasons: For a senior and experienced criminal lawyer there is no relevant difference between the lawyer’s office phone records and residential phone records and cellular phone records.

Identical concerns exist regarding protection of privileged information. A senior and experienced criminal lawyer in private practice is on call 24/7 and is going to be called weekends and after hours by clients. The police conceded this point in the Information to Obtain by stating it as a reasonable assumption. Mobile communication devices are now an essential tool to the criminal lawyer, permitting remote service to clients with this virtual office.

A judge issuing a Production Order for a criminal lawyer’s residential or cellular phone data must assume that both lines are an extension of the lawyer’s office line. [ 39 ] The Trial Division judge stated these devices “are now an essential tool to the criminal lawyer, permitting remote service to clients with this virtual office.” I agree with the Trial Division judge that there is no substantive difference between a lawyer’s office phone and residential phone, especially when mobile devices dominate business and domestic communications regardless of location.

This reality gives rise to the Crown’s obligation to take all reasonable steps to minimize the risk of a breach of solicitor-client privilege in this milieu. [ 40 ] The key question remaining is whether telephone numbers are, in contrast to the contents of the calls, subject to solicitor-client privilege. In an investigative context, the Crown concedes that getting access to phone numbers sought under the Rogers Order was necessary to identify callers to and from the respondent’s residential landline telephone in its effort to identify the fourth suspect.

That the names of clients are worthy of protection by privilege is referenced in paragraph 28 of Lavallee:

Courts have also identified another offensive aspect of s. 488.1(2) in the requirement that the lawyer name the client whose privilege isbeing threatened in order to engage the sealing procedure with respect to that client’s documents. The name of the client may very wellbe protected by solicitor-client privilege, although this is not always the case. See Thorson v. Jones (1973), (BC SC),38 D.L.R. (3d) 312 (B.C.S.C.); R. D. Manes and M. P. Silver, Solicitor-Client Privilege in Canadian Law (1993), at p. 141.

Where thename of the client is indeed privileged information, s. 488.1(2) compels the lawyer to choose between two different privileged items: thename of the client or the confidential documents targeted by the search. In these situations, s. 488.1(2) requires that one privilege besacrificed so that the other may be salvaged. See Lavallee, supra, at para. 50; White, supra, at para. 21; Fink, supra, at para. 39; Festing,supra, at para. 17, and Several Clients, supra, at para. 38.

The Trial Division judge accepted that the telephone numbers recorded by Rogers could easily be traced to callers’ names, and whiletelephone numbers per se may not be covered by privilege, client names can be (see Lavallee at paragraph 28 and Thorson v. Jones,(1973), (BC SC), 38 D.L.R. (3d) 312 (B.C.S.C.), at para. 4). [41] The Rogers Order, pending a decision of a justice of the Trial Division, should have been presumptively subject to privilege. Assuch, the information obtained from Rogers ought to have been sealed.

It was not for the Crown or the RNC to assume the respondent’shome landline did not attract solicitor-client privilege. Risk of Accidental Viewing [42] The Crown submits that the designated RNC officer did not view any of the data from Telus in the process of receiving it,having arranged to have it copied to an electronic medium, sealed and delivered to the court.

The respondent and the Law Society rejectthe position that the evidence demonstrates that the RNC officer received the data in a manner that required him to copy the data to anelectronic format before sealing, though this is consistent with the actual terms of the Telus Order. The respondent and the Law Societysubmit that the RNC officer should have received the disc in a sealed format and should have had no role in copying the data or in thesealing as this created a risk of accidental viewing.

The Trial Division judge clearly did not agree with the Crown’s position and rejectedit by relying upon the fourth and fifth principles set out in Lavallee. [43] I agree with the Trial Division judge’s conclusion. A clear risk of accidental viewing arose once the designated RNC officertook possession of the data covered by the orders, copying them to a disc and subsequently sealing then.

To the extent, however, thatthere is any doubt or confusion regarding the breadth of privilege and its application to metadata, as opposed to content, associated withthe Telus Order, allow me to clarify that both the metadata (which provides information about other data including the telephonenumbers that sent and received text messages and made or received phone calls as well as the times the calls and messages were made)and the content of the text messages should have been presumptively treated as subject to solicitor-client privilege unless and untildecided otherwise by a justice of the Trial Division.

Notification of Counsel or the Law Society [44] The Law Society submits that the police had 90 days to arrange issuance and execution of the Telus Order and argues that thisdid not create urgent time constraints that would have justified deviating from providing notice to the respondent or in the alternative theLaw Society in the normal course. No urgent time constraints were facing the Crown that would have precluded notice to and attendanceof a Law Society representative at the Telus office with the RNC officer.

There is also no evidence of any such time constraints withrespect to the Rogers Order. [45] The key point is that a risk to privilege arose when the RNC officer obtained physical possession of unsealed data containingrecords of telecommunications from counsel for Telus which the officer was intended to copy and seal. Under the order he wasauthorized to copy the data provided by Telus which created a clear risk of accidental viewing.

The Crown appears to have anticipatedthis scenario by having identified the RNC officer as being separate from the investigation presumably to obviate the need for oversightby the respondent or the Law Society. [46] The Law Society submits that there would not have been a breach of solicitor-client privilege or a risk of accidental viewing byhaving its representative present during the transfer of the Telus data and relies upon jurisprudence which recognizes that law societieshave a unique role in protecting the privilege. Counsel cited Federation of Law Societies of Canada v.

Attorney General, BCCA 147,2013 BCCA 147 , 41 B.C.L.R. (5th) 283, where:

[141] The chambers judge found that Canada did not establish that the means chosen are proportionate to the objective of the legislation.

She found that the objectives of ensuring adequate client identification and record-keeping by professionals were already being met in respect of the legal profession by virtue of the law societies’ regulation of their members, and concluded at para. 192 of her reasons that: …where a law society is exercising its role by regulating its members to protect the public’s interests, replacement of that role with a federal statute that permits the intrusion on solicitor-client privilege is contrary to the public interest. [142] In the result, I agree with the chambers judge that the regulation of lawyers by the law societies minimally impairs the rights of clients and lawyers while providing an effective and constitutional anti-money laundering and terrorist financing regime. (See also Lavallee point #5 at paragraph 21 above.) [ 47 ] I agree with the statement of the Trial Division judge that the Crown’s position is rooted in a “trust us” argument.

That is not to suggest that the integrity of the RNC inspector is being impugned in any respect. The manner in which the Telus ITO and Order were drafted authorized the RNC inspector to obtain the Telus data in the manner that is now under scrutiny. [ 48 ] The Lavallee principles provide that the appropriate time to give notice to legal counsel or the Law Society when a third party is about to transfer potentially privileged documents or data to the police to enable oversight of the seizure and sealing of the documents or data is prior to execution of the production order.

The police are not permitted to see any of the material that is the subject of a production order before the court decides the claims of privilege in an inter partes vetting process. Oversight at the execution of the production order by either the lawyer or the Law Society representative is crucial to ensure the protection of solicitor-client privilege. [ 49 ] At paragraph 16 of his reasons, the Trial Division judge acknowledged the Crown’s concern that advance notice to the respondent could jeopardize the investigation.

On the other hand, the Trial Division judge, due to the personal relationship suspected between the respondent and the known suspect, reaffirmed the general principle that the lawyer whose solicitor-client telecommunications data is potentially being sought by the police should be notified on a timely basis to be able to invoke privilege and arrange for oversight. However, he accepted that there may be instances when notice could jeopardize an ongoing investigation thus justifying notice to the Law Society as an appropriate alternate means of protecting the privilege.

He referred to Maranda at paragraph 20 where LeBel J. stated that: ... it will be up to the authorizing judge to exercise his or her power to assess the situation and to require that appropriate measures be taken to limit breaches of privilege.

The law society to which the lawyer belongs will then have to be informed in a timely manner , so that its representative can be present at the search and take the necessary steps to avoid any breach of solicitor-client privilege. (Emphasis added by Trial Division judge.) [ 50 ] The Trial Division judge correctly concluded that the Law Society ought to have been notified to permit a representative to be present at the time of execution of the Telus Order.

It was clear from the outset of this case that the data generated from the respondent’s communication devices and conversations was expected to be accessed by the police in order to aid the progress of a murder investigation and the identity of a fourth suspect was the main objective. The nature of the data being sought was highly sensitive.

Given that the orders directly related to telephone devices belonging to lawyers, primarily to the respondent, notification would properly be given to the Law Society. [ 51 ] The Crown says the orders expressly protected solicitor-client privilege and the product of the execution of the order should be left to the Supreme Court judge during the vetting process to assess on a review of each piece of data obtained. I do not agree. [ 52 ] Both orders included the following statement:

Nothing in this order shall be so construed as to require the production of any information which is subject to solicitor-client privilege. The Crown argues that this language constituted adequate protection of the privilege during execution by the RNC officer. In Maranda , the Supreme Court elaborated on the Lavallee principles by addressing the concept of minimization of any infringement upon privilege. Justice LeBel emphasized the duty to minimize interference with solicitor-client privilege by requiring careful drafting of an application for an authorization.

He wrote at paragraph 17: …It is then up to the judge to exercise his or her jurisdiction carefully, to ensure that the application for authorization properly establishes that there are no reasonable alternatives, and to define a procedure to be followed in executing the search that will preserve solicitor-client privilege to the greatest possible extent. This is not a matter of fulfilling formalities or laying out boilerplate allegations .

Where privilege could be breached, it must be shown to the judge’s satisfaction that the duty to minimize can be met in carrying out the proposed procedure. (Emphasis added.) [ 53 ] The principle of minimization must be reflected in how the application for authorization is worded and, in particular, in the wording of the supporting affidavits.

The affidavit must contain sufficiently precise and complete information respecting how the orders are to be complied with so that the authorizing judge is able to exercise his or her jurisdiction with full knowledge of the facts. [ 54 ] However, the Trial Division judge emphasized that no representative of the Law Society was present to oversee what information fell within the parameters of the Rogers Order which could be subject to a claim of privilege or to oversee the sealing process.

He also criticized the vagueness of the language in the Telus Order, especially where it stated that the data would not be reviewed by the RNC officer “at this time”. This provision could be interpreted to mean “before or after” the officer made a copy. The Trial Division judge criticized the lack of acceptable safeguards in the orders to protect the privilege. These criticisms were valid and justified quashing the orders. [ 55 ] The missteps that occurred here were contrary to the spirit and intent of the provisions of the Criminal Code and the Lavallee principles affirmed in the jurisprudence.

The absence of a proper process in the execution of the orders with Law Society oversight provided sufficient grounds for the Trial Division judge to grant certiorari regarding the orders in this case.

SUMMARY AND DISPOSITION [ 56 ] I conclude: (

i) the Trial Division judge did not err in finding that the Lavallee principles were engaged regarding the execution of the orders; (ii) the Trial Division judge did not err in finding that the Lavallee principles were breached by lack of oversight by the Law Society during the execution of the orders; and (iii) the Trial Division judge did not err in granting orders of certiorari quashing the orders.

Accordingly, the appeal is dismissed. _________________________ M. F. Harrington J.A. I Concur: _________________________ B. G. Welsh J.A. I Concur: _________________________ L. R. Hoegg J.A.