BarTalk October 2002
Volume 14, Number 5

SCC strikes down provision to search lawyers’ offices

On September 12, 2002, the Supreme Court of Canada struck down the provision of the Criminal Code of Canada that authorized searches of law offices, on the basis that such searches are prohibited under section 8 of the Canadian Charter of Rights and Freedoms.

The Canadian Bar Association welcomed the Supreme Court’s decisions in Lavallee, White Ottenheimer & Baker, and Fink, which upheld the fundamental principle that clients’ privileged communications with their lawyers must be protected.

Section 488.1 of the Criminal Code sets the parameters for law office searches by police. The Court’s decision strikes down that provision. The Supreme Court said that section 488.1 allowed unreasonable search and seizure, which is prohibited under section 8 of the Charter.

The cases came from three different provinces and were heard together by the Supreme Court. They considered government or police searches of law office files and the principle of solicitor-client privilege. CBA member Jim Lebo of Alberta argued the intervention on behalf of the CBA, with assistance from BC members. All CBA member participation was provided pro bono in this case.

Madam Justice Louise Arbour stated that: “Confidential communications to a lawyer represent an important exercise of the right to privacy, and they are central to the administration of justice in an adversarial system. Unjustified, or even accidental infringements of the privilege erode the public’s confidence in the fairness of the criminal justice system.”

BC President David Paul was pleased with the result. “Solicitor-client privilege is an important cornerstone of our justice system. It ensures that when clients speak to their lawyers, the communication remains private,” said Mr. Paul. “Without that protection, police or government could seize confidential documents and use them in any investigation against the client.”

The Court has emphasized that this privilege belongs to the client and can only be waived by the client. “The CBA strives to uphold this principle and believes that everyone who consults with a lawyer must be able to do so in confidence,” said Mr. Paul.

The Canadian Bar Association, the Federation of Law Societies and the Law Society of Alberta intervened at the Supreme Court, arguing that the Court must be vigilant in protecting this fundamental right. Any exceptions to lawyer-client confidentiality must be clearly defined so lawyers understand the scope of lawyer-client privilege and their ethical obligations. The CBA recommended that section 488.1 be struck down, to uphold the principle of solicitor-client privilege.

Reform of law in this area is now required. In its decision, the Supreme Court outlined 10 principles to guide Parliament in drafting a new law. The CBA has committed to working with the government in that process, as part of its law reform mandate.

Full text of the SCC decision can be found at www.lexum.umontreal.ca.

This article was published in the October 2002 issue of BarTalk and is subject to the copyright by the British Columbia Branch of the Canadian Bar Association, 2005, all rights reserved.