R v Douglas, 2017 MBCA 63

Citation: R v Douglas, 2017 MBCA 63 Date: 20170629 Docket: AR15-30-08456 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Marc M. Monnin Madam Justice Diana M. Cameron Mr. Justice William J. Burnett BETWEEN : HER MAJESTY THE QUEEN ) R. I. Histed ) for the Appellant ) Respondent ) C. P. R.

Murray ) for the Respondent - and - ) ) Appeal heard: DAVID JOSEPH DOUGLAS ) February 10, 2017 ) ) Judgment delivered: (Accused) Appellant ) June 29, 2017 CAMERON JA Introduction [ 1 ] This appeal involves a claim of solicitor-client privilege regarding documents that were seized in the execution of two search warrants (the warrants). Those warrants authorized, in part, the seizure of legal correspondence relating to a number of real estate transactions (the transactions).

The application judge found that the legal correspondence sought constituted transactional documents that were not presumptively protected by solicitor-client privilege. [ 2 ] For the reasons that follow, I am of the view that the legal correspondence authorized for seizure, including lawyers’ reporting letters, was presumptively privileged. On the facts of this case, the issuing justice was without jurisdiction to authorize the seizure of legal correspondence and, to that extent, the warrants were issued in breach of

section 8 of the Canadian Charter of Rights and Freedoms (the Charter ). [ 3 ] By way of remedy, I would excise the term “legal correspondence” from the warrants. [ 4 ] All of the documents seized by the RCMP are currently sealed and will remain so.

The court which would be best placed to decide whether any documents, as identified by the accused (the applicant), are subject to solicitor-client privilege is the court which will be first required to consider them in the context of the criminal proceedings to which the applicant is currently subject. [ 5 ] Neither the RCMP nor the Crown Attorney may view the seized documents prior to a determination of solicitor-client privilege by a judge. RCMP officers who have viewed any presumptively privileged documents are prohibited from disclosing or using their knowledge of them in any fashion.

Any documents found to be protected by solicitor-client privilege shall be returned to the applicant. Background and Proceedings [ 6 ] The applicant worked in various capacities in real estate transactions, including as a mortgage broker. He also owned and directed a number of businesses related to the financing of such transactions. As part of a mortgage fraud and theft investigation into certain activities of the applicant, the RCMP obtained the warrants pursuant to

section 487 of the Criminal Code (the Code ) in relation to his home and business. The warrants authorized the seizure of evidence relating to specific real estate transactions. Of import to this decision, each of the warrants authorized the seizure of “[c]orrespondence, contracts, agreements, legal correspondence , real estate files, mortgage documents or other documents in either electronic or paper format” relating to the transactions. The warrants were executed resulting in numerous seizures, including hard copy documents, computers and digital storage devices.

[ 7 ] Despite the seizures, the applicant was not charged with any criminal offence at that time. He filed an application pursuant to section 24(1) of the Charter requesting:

a) an order of certiorari quashing the warrants;

b) an order for the interim and final recovery of all property that was seized; and

c) an order prohibiting the prosecution of any of the charges described in the warrants. He claimed, among other things, that the legal correspondence seized was subject to solicitor-client privilege. [ 8 ] In response to the application, the RCMP investigation was halted and the seized material was sealed pending a determination of the issue. Eventually, the RCMP copied the documents and contents of the computers and digital storage devices and returned the originals to the applicant. The copied materials remain sealed. [ 9 ] The application judge dismissed the application.

The applicant appealed that decision to this Court. [ 10 ] After the applicant’s appeal was perfected, the RCMP charged him with the charges as detailed in the warrants (the charges). The Crown then filed a motion to quash the applicant’s appeal, claiming that it was interlocutory as the applicant was now charged. That motion was denied by this Court in R v Douglas , 2016 MBCA 81 ( Douglas 1 ). [ 11 ] Thus, this appeal concerns the dismissal of his application for relief under section 24(1) of the Charter . Since he was charged post-application, he is now also requesting that the charges be stayed.

Decision of Application Judge [ 12 ] At the hearing of the matter, in support of its position that the term “legal correspondence” as referenced in the warrants was only intended to apply to transactional information, the Crown provided affidavit evidence from the constable who swore the information to obtain (ITO) the warrants (the ITO constable).

The relevant excerpts from his subsequent examination for discovery are reproduced below: [Applicant’s counsel] So I understand you to be saying that you were interested in the correspondence between [the applicant] and his lawyers with respect to these five transactions? [ITO constable] If he was involved in the transaction, then yes. [Applicant’s counsel] So you were looking for lawyer/client communications regarding these transactions of [the applicant] [ITO constable] It was those reporting letters that we were most interested in.

And I termed it as legal correspondence and there was, sort of, the correspondence detailing what the transactions were done in those houses. [Applicant’s counsel] Right.

So a report by [the applicant’s] counsel to him as to actually how the transaction proceeded, whether it was completed, et cetera? [ITO constable] Yes. [ 13 ] When questioned by the Crown, the following exchange occurred: [Crown] When you used the term legal correspondence in the warrants, were you seeking legal advice? [ITO constable] No. [Crown] Were you seeking transactional information? [ITO constable] It was that transactional information or, you know, reporting information.

I’m not sure what the correct term [is]. [ 14 ] The application judge found that the transactional legal correspondence sought by the warrants constituted “actions and objective facts” rather than “communications that attract protection”. In support of his conclusion, he cited case law suggesting that documents related to real estate transactions do not involve the provision of legal advice. Therefore, he held that the legal

correspondence referenced in the warrants was not subject to solicitor-client privilege. [15] Having found that solicitor-client privilege did not apply, the application judge rejected the argument that there was nojurisdiction to issue the warrants. [16] He further rejected the applicant’s position that the legal correspondence seized was presumptively privileged andtherefore that the protections set out in Lavallee, Rackel & Heintz v Canada (Attorney General); White, Ottenheimer & Baker v Canada(Attorney General); R v Fink, 2002 SCC 61, regarding searches of law offices, applied.

In his view, the applicant’s home and businesscould not be considered to be within the definition of a law office. [17] Based on all of the above, the application judge dismissed the applicant’s

section 8 Charter argument as beingpremature. In his view, the determination of solicitor-client privilege, including the determination of whether the fraud exception foundin Descôteaux et al v Mierzwinski, (SCC), [1982] 1 SCR 860, existed, was to be determined on a document-by-documentbasis in “any subsequent hearing to determine privilege”. [18] Given the above, the application judge held that he had no need to consider a remedy pursuant to section 24(1) of theCharter. Grounds of Appeal [19] The applicant relies on three grounds of appeal.

First, he alleges that the application judge erred in finding that thewarrants were restricted to transactional real estate correspondence passing between him and his solicitors. Next, he argues that theapplication judge erred in finding that the transactional real estate correspondence referenced was not privileged. Finally, he submits thatapplication judge erred in finding that his

section 8 Charter right to be free from unreasonable search and seizure was not infringed. Ground #1—Did the application judge err in finding that the warrants were restricted to transactional real estate correspondencepassing between the applicant and his solicitors? [20] In my view, this first ground of appeal can be dealt with summarily. I agree with the Crown that the authorization toseize legal correspondence only referred to correspondence relating to the transactions specified in the warrants and not all legalcorrespondence possessed by the applicant.

The scope of the warrant must be determined by reading it as a whole, in consideration ofthe description of the offences and the items to be seized. See Canada (Commissioner of Competition) v Falconbridge Ltd (2003), (ON CA), 173 CCC (3d) 466 at paras 13-14. The warrants in this case specifically stated that they were for legalcorrespondence “relating to” the transactions and were therefore limited in that regard. [21] For ease of reference, I will deal with the second and third grounds together.

Ground #2—Did the application judge err in finding that the legal correspondence authorized for seizure was not protected by solicitor-client privilege? Ground #3—Did the Application Judge err in finding that the applicant’s

section 8 Charter right to be free from unreasonable searchand seizure was not infringed? Positions of the Parties [22] In support of his assertion that the legal correspondence sought, including any reporting letters to the applicant from hissolicitor(

s) regarding the transactions, was subject to solicitor-client privilege, he asserts that the case law relied on by the applicationjudge was dated and not in accord with Supreme Court of Canada jurisprudence. [23] Further, relying on Lavallee, the applicant argues that the special procedures and protections that provided for thesearch and seizure of presumptively privileged documents are not restricted to law offices, but rather, apply to the seizure of materialsthat can be presumed to be privileged by their very nature. [24] Thus, the applicant argues that the issuing justice had no jurisdiction to issue the warrants and that they resulted in abreach of his

section 8 Charter right to be free from unreasonable search and seizure. [25] The Crown argues that the application judge did not err when he held that the legal correspondence sought referredonly to transactional real estate documents not known to be protected by solicitor-client privilege. Further, it maintains that the targetedlegal correspondence, including lawyers’ reporting letters, is not subject to the rebuttable presumption of privilege created by theSupreme Court of Canada for lawyers’ bills and accounts in the context of law office searches. [26] Regarding

section 8 of the Charter, the Crown agrees that, if the warrants are found to be defective, the resultingwarrantless search would have been unreasonable. However, absent such a finding, the Crown argues that the applicant must prove abreach on a document-by-document basis. Thus, it submits that the application judge did not err when he held that it was premature toconsider the applicant’s

section 8 Charter arguments. [27] If a breach of

section 8 of the Charter is found, the Crown asserts that there are many potential remedies short of a stayof proceedings that would be appropriate and just. Standard of Review [28] The parties agree, appropriately in my view, that the issues of whether the legal correspondence referred to in the searchwarrant was protected by solicitor-client privilege and whether a breach of

section 8 of the Charter occurred are questions of lawreviewable on the standard of correctness. See R v Tran, 2010 SCC 58 at para 40; R v Buzizi, 2013 SCC 27 at para 15; and R v Farrah

(D), 2011 MBCA 49 at para 7. Discussion Solicitor-Client Privilege [29] Before dealing with the legal correspondence in question, it is helpful to review the importance of solicitor-clientprivilege. Over the last two decades, the Supreme Court of Canada has consistently emphasized the significance of the principle ofsolicitor-client privilege and ultimately constitutionalized it.

In Douglas 1, Beard JA described the development of the law as follows (atpara 60): The principles of solicitor-client privilege, which have evolved and increased in importance over time (see, for example, R v McClure,2001 SCC 14 at paras 17-37, [2001] 1 SCR 445; and Pritchard v Ontario (Human Rights Commission), 2004 SCC 31, [2004] 1 SCR809), were described by Arbour J for the majority in Lavallee, Rackel & Heintz v Canada (Attorney General); White, Ottenheimer &Baker v Canada (Attorney General); R v Fink, 2002 SCC 61, [2002] 3 SCR 209 as follows (at para 49): Solicitor-client privilege is a rule of evidence, an important civil and legal right and a principle of fundamental justice in Canadian law.

While the public has an interest in effective criminal investigation, it has no less an interest in maintaining the integrity of the solicitor-client relationship. Confidential communications to a lawyer represent an important exercise of the right to privacy, and they are centralto the administration of justice in an adversarial system. Unjustified, or even accidental infringements of the privilege erode the public’sconfidence in the fairness of the criminal justice system.

This is why all efforts must be made to protect such confidences. [30] In the recent decision of Alberta (Information and Privacy Commissioner) v University of Calgary, 2016 SCC 53, CôtéJ, for the majority, summarized the current significance of the principle, concluding (at para 43): This Court has repeatedly affirmed that, as a substantive rule, solicitor-client privilege must remain as close to absolute as possible andshould not be interfered with unless absolutely necessary ([Canada (Attorney General) v Chambre des notaires du Québec, 2016 SCC20], at para. 28, citing Lavallee, at paras. 36-37, McClure, at para. 35, R. v.

Brown, 2002 SCC 32, [2002] 2 S.C.R. 185, at para. 27, andGoodis, at para. 15). [31] See, also, Canada (Attorney General) v Federation of Law Societies of Canada, 2015 SCC 7 at para 44. [32] Moreover, solicitor-client privilege has long been known as a presumptive, prima facie, or class privilege. The natureof this privilege was described by Lamer CJ in R v Gruenke, (SCC), [1991] 3 SCR 263 (at p 286): I think it is important to clarify the terminology being used in this case.

The parties have tended to distinguish between two categories: a“blanket”, prima facie, common law, or “class” privilege on the one hand, and a “case-by-case” privilege on the other. The first fourterms are used to refer to a privilege which was recognized at common law and one for which there is a prima facie presumption ofinadmissibility (once it has been established that the relationship fits within the class) unless the party urging admission can show whythe communications should not be privileged (i.e., why they should be admitted into evidence as an exception to the general rule).

Suchcommunications are excluded not because the evidence is not relevant, but rather because, there are overriding policy reasons to excludethis relevant evidence. Solicitor-client communications appear to fall within this first category (see: Geffen v. Goodman Estate, (SCC), [1991] 2 S.C.R. 353 and Solosky v.

The Queen, (SCC), [1980] 1 S.C.R. 821). [33] In Maranda v Richer, 2003 SCC 67, LeBel J, writing for a majority of the Court, affirmed that solicitor-client privilege“is one of the rare class privileges” recognized by the common law (at para 11): [S]olicitor-client privilege is one of the rare class privileges recognized by the common law. The decisions of this Court have clearlydistinguished that privilege from privileges that are recognized on an individual, case-by-case basis for legal policy reasons, under theWigmore test (J. Sopinka, S. N. Lederman and A. W.

Bryant, The Law of Evidence in Canada (2nd ed. 1999), at pp. 713-15; Gruenke, atpp. 286-87). [34] He explained that the presumption of privilege provides guidance to the methods by which it is given effect (at para33):

While that presumption does not create a new category of privileged information, it will provide necessary guidance concerning themethods by which effect is given to solicitor-client privilege, which, it will be recalled, is a class privilege.

Because of the difficultiesinherent in determining the extent to which the information contained in lawyers’ bills of account is neutral information, and theimportance of the constitutional values that disclosing it would endanger, recognizing a presumption that such information falls primafacie within the privileged category will better ensure that the objectives of this time-honoured privilege are achieved.

That presumptionis also more consistent with the aim of keeping impairments of solicitor-client privilege to a minimum. [emphasis added] [35] Thus, documents that are presumptively privileged are subject to more stringent procedures and controls regarding theirseizure and disclosure. Solicitor-Client Privilege and Transactional Documents [36] In Solosky v The Queen, (SCC), [1980] 1 SCR 821, Dickson J summarized the criteria required toestablish solicitor-client privilege. There must be (at p 837): (

i) a communication between solicitor and client; (ii) which entails the seeking or giving of legal advice; and (iii) which is intended to beconfidential by the parties. [37] Historically, some jurisprudence had developed holding that real estate documents, including reporting letters fromlawyers to clients, are merely transactional documents and are therefore not subject to solicitor-client privilege. In Manitoba in R vTysowski, 1997 CarswellMan 339 (QB), Oliphant ACJQB held that the files seized from a lawyer’s office regarding real estatetransactions were not subject to solicitor-client privilege.

Regarding reporting letters, he stated (at para 25): Although it must be conceded that advice is given by the solicitors to their respective clients by way of reporting letters on the closingsof the transactions involved in the various files, the advice really is a factual report as to what has transpired in the various transactionsand not legal advice in the strict sense of the word.

I hold that advice given by way of reporting on the closing of a real estate transactionis not subject to a solicitor-client privilege. [38] In reaching his conclusion, he relied on the case of B v Canada, 1995 CarswellBC 63 (SC), where the Court consideredthe confusion that can arise between conversations and documents involving a lawyer and a client which are not privileged becauseeither the conditions of confidentiality and/or legal advice have not been met. [39] In this case, when determining that the legal correspondence referred to in the warrants was not protected by solicitor-client privilege, the application judge applied Tysowski, stating: Moving on to the warrants sought by the RCMP, in my view, the RCMP sought nothing improper in requesting the authority to searchfor transactional legal correspondence relating to the impugned transactions.

It is well-settled in our law that a lawyer’s real estatetransaction files are not subject to solicitor-client privilege, even though they may have been confidential records.

The rational is asimple one; that is, because they represent actions and objective facts rather than communications that attract protection. [40] The application judge further noted that Tysowski was applied in Canada (Minister of National Revenue) v Reddy, 2006FC 277; and Westra Law Office (Re), 2009 ABQB 391. [41] In brief, the application judge considered that the documents were not privileged on the basis that: 1) they did notinclude the provision of legal advice; and 2) that they represented acts reflected in the transactional documents that are not confidential. [42] However, since Solosky, courts have continued to define and expand the meaning of legal advice.

They have also calledinto question whether there should continue to exist a distinction between actions and objective facts and communications. Thus, theevolution of each of these concepts will be examined. Defining Legal Advice [43] At the outset, I recognize that certain transactional or conveyancing documents are not privileged. For example,documents that end up in a public registry, such as transfers of land, are not privileged. See Kaddoura v Hanson, 2015 ABCA 154 atpara 28; and R v Li, 2013 ONCA 81 at para 66. [44] Nevertheless, there is a line of case law evidencing an expansive approach to the

interpretation of what constitutes legal

advice, including situations where the lawyer is simply acting as a lawyer, rather than strictly providing legal advice.

This development can be traced to Canada (Privacy Commissioner) v Blood Tribe Department of Health , 2008 SCC 44 , where Binnie J, writing on behalf of a unanimous Court, stated (at para 10): While the solicitor-client privilege may have started life as a rule of evidence, it is now unquestionably a rule of substance applicable to all interactions between a client and his or her lawyer when the lawyer is engaged in providing legal advice or otherwise acting as a lawyer rather than as a business counsellor or in some other non-legal capacity. [emphasis added] [ 45 ] In Simcoff v Simcoff , 2009 MBCA 80 , Steel JA highlighted this comment and stated, “courts lean toward finding that such a privilege exists whenever a lawyer acts in their professional capacity” (at para 19) and that, “One can find many cases where solicitor-client privilege was upheld despite the assertion that the communication did not involve what one might label as ‘legal advice’” (at para 21). [ 46 ] More recently, in Slansky v Canada (Attorney General) , 2013 FCA 199 , leave to appeal to SCC refused without written reasons, 2014 CarswellNat 264 , Evans JA, writing for the majority, stated that the above comment in Blood Tribe “somewhat broadened the scope of legal advice privilege” and concluded (at para 79): Thus, a solicitor-client relationship is established for privilege purposes if the lawyer has been asked either to give legal advice or otherwise to act as a lawyer, that is, to perform services related to a legal issue pertaining to the client for which the professional skills and knowledge of a lawyer are required. [ 47 ] Furthermore, while Tysowski may have been the leading case in Manitoba, there exist differing opinions as to whether reporting letters in a real estate transaction are protected by solicitor-client privilege.

These cases also take a somewhat more expansive view of what constitutes legal advice. [ 48 ] For example, in Metro Concrete Floors v Fieldview Construction , 2012 ONSC 2966 , Healey J denied a motion for production of a reporting letter and solicitor’s account from a purchase transaction in a civil case where it was alleged that trust funds were misappropriated to facilitate a real estate transaction.

She wrote (at para 3): Clients seek solicitors for purchase transactions to offer both guidance and advice, and the reporting letter and account to the client are direct by-products of the legal advice and assistance both sought and given for such transactions . [ 49 ] Also see Nathawad v Minister of National Revenue , 1998 CarswellBC 3223 (SC) ; Re Krhanek and Slyomovics , 2006 BCSC 956 ; and Normc Developers Inc v Dolson , 2011 ONSC 2770 , wherein reporting letters were considered to be privileged. [ 50 ] Similarly, solicitor-client privilege has been found where there is a link between a description of the services provided and solicitor-client privilege.

As earlier stated, in Maranda , the majority of the Supreme Court of Canada held that a lawyer’s bill of accounts fell prima facie within the category of solicitor-client privilege.

In Wong v Luu , 2015 BCCA 159 , Willcock JA explained (at para 38): A lawyer’s bills are presumptively privileged because they are ordinarily descriptive; by recording the work done by the solicitor, they disclose the client’s instructions, which the client cannot be compelled to divulge and the confidentiality of which the solicitor is obliged to protect. [ 51 ] See, also, Southern Railway of British Columbia Ltd v Deputy Minister of National Revenue, 1990 CarswellBC 1828 at para 9 (SC) ; and R v 1496956 Ontario Inc , 2009 CarswellOnt 1537 at para 8 (Sup Ct J) . [ 52 ] Thus, there is support for a finding that a reporting letter is protected by solicitor-client privilege for the reason that it falls within the definition of legal advice.

That is, a reporting letter involves a lawyer providing legal services and it involves a description of the services provided, thereby disclosing the client’s instructions. The Distinction Between Facts and Communications [ 53 ] The application judge held that legal correspondence, including reporting letters, constituted transactional documents which “ represent actions and objective facts” as opposed to solicitor-client communications.

[54] In my view, this historical distinction has eroded over time as well. In Maranda, LeBel J considered the distinctionbetween facts and communications in the context of a criminal investigation, stating (at paras 28, 30, 32-33): The problem here must be solved in a way that is consistent with the general approach adopted in the case law to defining the content ofsolicitor-client privilege and to the need to protect that privilege.

In the context of criminal investigations and prosecutions, that solutionmust respect the fundamental principles of criminal procedure, and in particular the accused’s right to silence and the constitutionalprotection against self-incrimination. That rule cannot be based on the distinction between facts and communication. The protection conferred by the privilege coversprimarily acts of communication engaged in for the purpose of enabling the client to communicate and obtain the necessary informationor advice in relation to his or her conduct, decisions or representation in the courts.

The distinction is made in an effort to avoid factsthat have an independent existence being inadmissible in evidence (Stevens [Stevens v Canada (Prime Minister), (FCA), 1998 CarswellNat 1051 (FCA)] at para. 25). The existence of the fact consisting of the bill of account and its payment arises out of the solicitor-client relationship and of whattranspires within it. That fact is connected to that relationship, and must be regarded, as a general rule, as one of its elements.

Because of the difficulties inherent in determining the extent to which the information contained in lawyers’ bills of account is neutralinformation, and the importance of the constitutional values that disclosing it would endanger, recognizing a presumption that suchinformation falls prima facie within the privileged category will better ensure that the objectives of this time-honoured privilege areachieved.

That presumption is also more consistent with the aim of keeping impairments of solicitor-client privilege to a minimum,which this Court forcefully stated even more recently in McClure, supra, at paras. 4-5. [emphasis added] [55] More recently, in the civil context in Canada (Attorney General) v Chambre des notaires du Québec, 2016 SCC 20, theCourt considered the issue in the context of “professional secrecy”, which it noted had strong similarities with the common law’ssolicitor-client privilege, stating (at para 40): [I]t is not appropriate to establish a strict demarcation between communications that are protected by professional secrecy and facts thatare not so protected (Maranda, at paras. 30-33; Foster Wheeler [Foster Wheeler Power Co v Société intermunicipale de gestion etd’elimination des déchets (SIGED) inc, 2004 SCC 18], at para. 38).

The line between facts and communications may be difficult todraw (S. N. Lederman, A. W. Bryant and M. K. Fuerst, The Law of Evidence in Canada (4th ed. 2014), at p. 941). For example, thereare circumstances in which non-payment of a lawyer’s fees may be protected by professional secrecy (R. v. Cunningham, 2010 SCC 10,[2010] 1 S.C.R. 331, at para. 30). The Court has found that “[c]ertain facts, if disclosed, can sometimes speak volumes about acommunication” (Maranda, at para. 48).

This is why there must be a rebuttable presumption to the effect that “all communicationsbetween client and lawyer and the information they shared would be considered prima facie confidential in nature” (Foster Wheeler, atpara. 42). Also see Canada (National Revenue) v Thompson, 2016 SCC 21 at para 19. [56] In my view, a reporting letter is within that class of interactions that fall between communications that arise out of thesolicitor-client relationship and those that transpire within it.

Conclusion—Presumption of Privilege [57] In determining that the legal correspondence, including reporting letters, referred to in the warrants did not constitutematerial that was protected by solicitor-client privilege, the application judge relied on Manitoba jurisprudence.

In my view, thatjurisprudence can no longer be considered to be an accurate representation of the law of solicitor-client privilege as it has evolved. [58] Rather, the legal correspondence, including reporting letters, authorized for seizure by the warrants constitutedinformation that was subject to a rebuttable presumption that it was protected by solicitor-client privilege. Such correspondence is thedirect result of a lawyer providing legal advice or otherwise acting as a lawyer, is descriptive of the services provided by the lawyer andarises as a result of the solicitor-client relationship. Jurisdiction and

Section 8 of the Charter [59] In Lavallee, the majority of the Supreme Court of Canada held that

section 488.1 of the Code (as it then was), dealingwith the procedure to be followed when documents are examined or seized and solicitor-client privilege is claimed, breached

section 8 of

the Charter . That case dealt with searches of law offices. After finding the

section to be lacking, the Court set out a number of principles regarding the issuance of warrants authorizing seizure of materials from law offices. They are (at para 49): 1. No search warrant can be issued with regards to documents that are known to be protected by solicitor-client privilege. 2. Before searching a law office, the investigative authorities must satisfy the issuing justice that there exists no other reasonable alternative to the search. 3.

When allowing a law office to be searched, the issuing justice must be rigorously demanding so to afford maximum protection of solicitor-client confidentiality. [ 60 ] I am cognizant that documents found in a law office can be presumed to be privileged and that such a presumption does not necessarily apply to the search of a person’s residence. However, in this case, the warrants specifically targeted solicitor-client information that was subject to the presumption of privilege.

In my view, if the documents are presumptively privileged, it matters not whether the documents are seized from a lawyer’s office or from some other location. That is because solicitor-client privilege belongs to the client, not the lawyer.

See Chambre des notaires du Québec at para 48 ; and Alberta (Information and Privacy Commissioner) at para 35 . [ 61 ] Where the information sought is presumptively privileged, the onus on the Crown was described in Maranda as follows (at para 34 ): Accordingly, when the Crown believes that disclosure of the information would not violate the confidentiality of the relationship, it will be up to the Crown to make that allegation adequately in its application for the issuance of a warrant for search and seizure.

The judge will have to satisfy himself or herself of this, by a careful examination of the application, subject to any review of his or her decision. [ 62 ] In this case, the ITO constable did not consider the legal correspondence to be presumptively privileged and therefore did not allege that its disclosure would not violate the confidentiality of the solicitor-client relationship.

Nothing in the record suggests that the issuing justice considered the issue. [ 63 ] Of course, as pointed out in Maranda , the issuing judge may issue a warrant for privileged documents where the informant establishes that an exception applies, such as the crime exception.

In this case, because the ITO constable did not consider the information to be presumptively privileged, the issue of the crime exception was not addressed in the ITO and therefore it was not considered by the issuing justice. [ 64 ] Regardless, even where a warrant is issued for presumptively privileged documents based on the crime exception, the warrant applied for may only be granted “on terms that seek to keep breaches of privilege to a minimum” ( Maranda at para 22 ).

That did not occur in this case. [ 65 ] In light of the above, the issuing justice acted outside of her jurisdiction when issuing the warrants for legal correspondence. As the Crown rightfully concedes, in as far as the issuing justice acted without jurisdiction, a breach of

section 8 of the Charter is also established. Remedy Positions of the Parties [ 66 ] The applicant asks that the warrants be quashed in their entirety. Further, he states that, since the seizure of the documents referred to in the warrant was in breach of

section 8 of the Charter , they are inadmissible. However, his main argument is that the charges which he is facing regarding the offences outlined in the ITO and the warrants should be stayed pursuant to section 24(1) of the Charter . It is his position that the police deliberately went looking for privileged documents and viewed them while executing the search warrant and after.

He contends that the taint of the breach affects his ability to have a fair trial and that to subject him to one would seriously compromise the integrity of the administration of justice. [ 67 ] The Crown suggests the term “legal correspondence” be excised from the warrant and that management of the documents proceed in a manner ordered by the Court. The Crown agrees that any privileged documents should be returned to the applicant and that an order be made prohibiting anyone who has seen a privileged document from revealing or making use of any privileged information.

Discussion Scope of Remedy [ 68 ] Regarding the issue of remedy in a situation such as this, where both jurisdictional and Charter issues arise, Beard JA,

in Douglas 1, considered the issue and noted the following passage from Mills v The Queen, (SCC), [1986] 1 SCR 863at 965 (at para 27): There will no doubt be cases where the claim for relief under s. 24(1) of the Charter will be based on an allegation of jurisdictional errorin respect of which prerogative relief in the superior court could be available.

The two avenues to seek relief, that is, to the court inwhich the issue arises for an appropriate remedy under s. 24(1), or to the superior court for prerogative relief where the jurisdictionalground[s] exist, will remain open but must be kept separate and applied according to circumstances. All Charter violations andinfringements will not be jurisdictional. Remedies which may be ordered are not limited to prerogative remedy, that is, certiorari,prohibition and mandamus. These, of course, may be given where grounds for such relief, according to the law and practice which hasgrown up concerning them, are present.

Otherwise, the remedy will be what the court considers appropriate and just under s. 24(1) ofthe Charter. Also see R v Ciarniello, 2004 CarswellOnt 3394 at para 26 (Sup Ct J); and BGI Atlantic Inc v Canada (Minister of Fisheries andOceans), 2004 NLSCTD 165 at paras 27, 41. [69] In this case, the application was made pursuant to section 24(1) of the Charter. Thus, this Court has jurisdiction togrant a remedy pursuant to that

section and, in my view, such a remedy is appropriate. [70] When fashioning a remedy pursuant to section 24(1) of the Charter, the court is to take a “generous and expansive”approach and may fashion one which it considers “appropriate and just” (see Doucet-Boudreau v Nova Scotia (Minister of Education),2003 SCC 62 at paras 24, 55). [71] Briefly, an appropriate and just remedy is one which will (1) meaningfully vindicate the rights and freedoms of theclaimants; (2) employ means that are legitimate within the framework of our constitutional democracy; (3) be a judicial remedy whichvindicates the right while invoking the function and powers of the court; and (4) be fair to the party against whom the order is made.

SeeDoucet-Boudreau at paras 52-58. Severance and Quashing of the Warrants [72] Prior to the enactment of the Charter, severance of “the bad parts” of search warrants existed in the context ofapplications for certiorari.

See Re Regina and Johnson & Franklin Wholesale Distributors (1971), (BC CA), 3 CCC(2d) 484 (CA), leave to appeal to SCC refused, [1971] SCR ix; and R v B (JE) (1989), (NS CA), 52 CCC (3d) 224(NSSC (AD)). [73] In Grabowski v The Queen, (SCC), [1985] 2 SCR 434, a case involving an authorization for theinterception of private communications, Chouinard J explained (at para 61): When there is a clear dividing line between the good and bad parts of an authorization, and they are not so interwoven that they cannotbe separated but are actually separate authorizations given in the same order, the Court in my opinion can divide the order and preservethe valid portion, which then forms the authorization.

In such a case interceptions made under the valid authorization are admissible. [74] Courts have held, and I agree, that the same logic is to be applied to search warrants.

See Regina v Paterson, Ackworthand Kovach (1985), (ON CA), 18 CCC (3d) 137 (Ont SC (CA)); R v S (SJ), 1999 CarswellSask 501 (QB), aff’dwithout comment on this point, 2000 SKCA 118; R v Sonne, 2012 ONSC 584. [75] The issue of severance of documents considered to be protected by solicitor-client privilege was considered in ReChurch of Scientology and The Queen (No 6) (1987), 31 CCC (3d) 449 (Ont CA) (Scientology No 6), leave to appeal to SCC refused,[1987] 1 SCR vii.

While rejecting the argument that the documents listed in the warrant in that case were privileged, the Courtnonetheless stated (at p 534): However, if the search warrant had specifically included the legal bureau documents, that part of it could be severed and quashedwithout invalidating the search warrant itself.

In Re Regina and Johnson & Franklin Wholesale Distributors Ltd. (1971), (BC CA), 3 C.C.C. (2d) 484, 16 C.R.N.S. 107, [1971] 4 W.W.R. 534, Tysoe, J.A., delivering the judgment of the British ColumbiaCourt of Appeal, reviewed the authorities at pp. 489-90 C.C.C., pp. 540-1 W.W.R., and held that the doctrine of severability can properlybe applied to a search warrant.

We agree. [76] In my view, while severance may be ordered as a remedy in response to an application for certiorari, it may also formpart of a remedy fashioned pursuant to section 24(1) of the Charter. [77] As earlier stated, the warrants authorized the seizure of numerous types of documents such as correspondence,contracts, agreements, real estate files and mortgage documents. Aside from the reference to legal correspondence, it was within thejurisdiction of the issuing justice to authorize seizure of the other documents as they were not presumptively privileged. The search and

seizure of those documents would not prima facie constitute a breach of

section 8 of the Charter . Thus, I would deny the applicant’s request to quash the warrants. In my view the term “legal correspondence” should be excised from the warrants. [ 78 ] I would deny the applicant’s request for a stay of proceedings. While presumptively privileged documents were seized, the evidence of the police was that they had barely begun to vet the documents and were unaware of their contents. The ITO constable indicated that he could not recall the content of the documents seized during the search.

The application judge accepted this evidence, and his finding in this regard is subject to deference. At this point, it cannot be stated that the applicant will have an unfair trial. Supervision Order and Injunction [ 79 ] Despite the fact that I have refused the applicant’s request to quash the warrants and his application for a stay of the criminal charges, the fact remains that the warrants authorized the seizure of prohibited documents. [ 80 ] I earlier reviewed the principles enunciated in Lavallee concerning the protection of solicitor-client privilege governing the search authorization process.

Regarding the general manner in which the search must be carried out, the Court further provided (at para 49): 4. Except when the warrant specifically authorizes the immediate examination, copying and seizure of an identified document, all documents in possession of a lawyer must be sealed before being examined or removed from the lawyer’s possession. 5. Every effort must be made to contact the lawyer and the client at the time of the execution of the search warrant.

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

If notification of potential privilege holders is not possible, the lawyer who had custody of the documents seized, or another lawyer appointed either by the Law Society or by the court, should examine the documents to determine whether a claim of privilege should be asserted, and should be given a reasonable opportunity to do so. 8. The Attorney General may make submissions on the issue of privilege, but should not be permitted to inspect the documents beforehand. The prosecuting authority can only inspect the documents if and when it is determined by a judge that the documents are not privileged. 9.

Where sealed documents are found not to be privileged, they may be used in the normal course of the investigation. 10. Where documents are found to be privileged, they are to be returned immediately to the holder of the privilege, or to a person designated by the court. [emphasis added] [ 81 ] As earlier stated, all of the material seized as a result of the execution of the warrants has been sealed. In situations similar to this, courts have fashioned orders attempting to comply with the principles of Lavallee .

For example, in R v Shah , 2015 ONSC 4853 , Molloy J considered the possibility that solicitor-client privilege could arise in the execution of a search warrant for an accused’s cell phone. He held that, if a claim for privilege was asserted, the phone would remain in the custody of the court until a judge could determine whether privilege had been established.

Further, he stipulated that the Crown was not entitled to see the material over which the claim was asserted, although it was entitled to notice of any application to determine the privilege issue (at para 35). [ 82 ] In Descôteaux, Lamer J held that, where solicitor-client privilege is asserted, it is “not necessary to wait for the trial or preliminary inquiry at which the communication is to be adduced” before raising its confidentiality (at p 869).

Thus, as I would allow the appeal in part, the proceedings should be remitted back to the application judge for a determination regarding which documents are protected by solicitor-client privilege. [ 83 ] Unlike a situation where a person subject to a warrant is unaware of what documents are being seized and, therefore, which ones might be privileged, the applicant in this case knows precisely what documents were seized as the originals have been returned to him.

Thus, I would order that the applicant identify the specific documents over which he claims solicitor-client privilege within thirty days of the issuance of this judgment or any later date with leave of the application judge. See Emms Re , 2005 CarswellOnt 969 .

[84] Courts have chosen various procedures to review documents over which solicitor-client privilege is claimed. In Reginav Zaharia and Church of Scientology of Toronto (1985), (ON SC), 21 CCC (3d) 118 (Ont H Ct J), rev’d on othergrounds (see Scientology No 6), the parties consented to the nomination of a retired judge to make a detailed examination of them. InAttorney General v Law Society, 2010 ONSC 2150 (Sup Ct J), Hennessy J held that either the “presiding judge” or a “person appointedby the court” may conduct the review (at para 27).

Also see R v KE, 2015 SKQB 342; and R v Law Office of Simon Rosenfeld, 2003CarswellOnt 2407 (Sup Ct J), where the court appointed a “referee” to examine the documents. Ultimately, the judge would review thedocuments to make a final determination. The procedure to follow in this case is left to the application judge to determine. [85] Any documents found to be protected by solicitor-client privilege must be returned to the applicant. Neither the RCMPnor the Crown are entitled to view the documents until a determination has been made that they are not protected.

In Lavallee, Arbour Jexplained that allowing the state to inspect the seized documents, even if such was an attempt to “help” the application judge todetermine whether a document is privileged, would diminish the public’s faith in the administration of justice and create a potential forabuse.

Citing Re Borden & Elliot and The Queen (1975), (ON CA), 30 CCC (2d) 337 (Ont CA), she noted that itwould be “small comfort indeed” to not allow privileged documents into evidence when their contents have already been disclosed to theprosecuting authority (at para 44). [86] In this case, the RCMP may have seen privileged documents. The electronic processing of the documents hadcommenced prior to the claim of privilege.

However, the application judge considered the evidence before him and found that thedocuments had only been given a “cursory” examination by way of a controlled key word search and that none of the results from thatsearch had been forwarded to the investigating officers. Further, he noted that the ITO constable could not remember any specificdocument that had been seized. [87] In the civil context in Descôteaux, Lamer J stated that a third party who accidentally views the contents of a lawyer’sfile “could be prohibited by injunction from disclosing them” (at p 871).

In R v Bastidas, 1993 CarswellAlta 22 (QB), Ritter J, as he thenwas, cited the above decision and wrote (at para 12): It follows that if the accidental viewing of a lawyer’s file is subject to a prohibitive injunction, the intentional viewing of the file eithersurreptitiously or pursuant to a search warrant is also subject to such injunction. [88] In my view, an injunction is appropriate in this case.

Thus, I would order that each of the RCMP officers, who mayhave viewed a document presumptively protected by solicitor-client privilege (i.e. any legal correspondence seized), not be allowed todisclose the documents or use their knowledge of the documents in furtherance of this investigation, or any other investigation orcharges, involving the applicant.

To be clear, the RCMP officers who have possibly seen the privileged documents will be allowed tocontinue the investigation and testify as required, but they will be prohibited from disclosing to anyone any knowledge that they mayhave obtained from any presumptively privileged document, and prohibited from using that knowledge in their investigation. [89] At this point, I would add that, had there been mala fides on behalf of the RCMP, my decision on remedy may havebeen different.

However, “the decision by the police must be judged by what was or should reasonably have been known to them at thetime, not in light of how things turned out to be” (R v Cornell, 2010 SCC 31 at para 23). In this case, the dated case law understood atthe time in Manitoba would have allowed the police to obtain a warrant for legal correspondence such as reporting letters.

Conclusion and Decision [90] In the circumstances of this case, the issuing justice was without jurisdiction to issue warrants for legal correspondence,including the reporting letters sought by the RCMP, on the basis that such documents are presumptively privileged. To the extent that hedid make such an order, it was in breach of

section 8 of the Charter. While the reference to legal correspondence is in contravention ofthe Charter, the remaining documents were properly authorized for seizure. Therefore, the authorization to seize legal correspondenceshould be excised from the warrant. [91] The seized documents must remain sealed until such a time as a determination can be made regarding the issue ofprivilege. The proceedings are therefore returned to the application judge for this purpose. The seized material is not to be inspected bythe RCMP or Crown until a determination regarding privilege has been made.

If protected by privilege, the documents must be returnedto the applicant. Any RCMP officer who viewed a privileged document is prohibited from disclosing its contents and using anyknowledge gleaned from that document in this case or any future case. [92] I would allow the appeal to the extent that I have described above. JA I agree: JA I agree: JA