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Notice from the Law Society of Manitoba - Re: Search and Seizure Guidelines

Posted April 16, 2004

Part A - Introduction

Law office search and seizure is a serious exercise of law enforcement agency power with grave implications for solicitor-client privilege and the administration of justice. Search warrants may be obtained by law enforcement officials under various sections of the Criminal CodeControlled Drugs and Substances Act and other Federal and Provincial legislation. The process for law office searches and seizures pursuant to any Federal Act was codified by section 488.1 of the Criminal Code, a section that was declared unconstitutional by the Supreme Court of Canada in LavalleeRackel and Heintz v. Canada (Attorney General); WhiteOttenheimer and Baker v. Canada (Attorney General); R. v. Fink [2002] S.C.C. 61 in September 2002. Justice Arbour, writing for the majority, concluded that section 488.1 more than minimally impairs solicitor-client privilege, thereby amounting to an unreasonable search and seizure contrary to section 8 of the Charter. The court accordingly struck the section down pursuant to section 52 of the Constitution Act, 1982. While the court did not consider the effect of the equivalent sections of the Income Tax Act, those provisions must also be viewed in light of Lavallee.

Law office searches and seizures can continue notwithstanding the Supreme Court's determination that section 488.1 is unconstitutional. You will therefore need to know how to deal with the law enforcement agency and the warrant, and you may subsequently have to make an assessment of the legality of the actions of the law enforcement agency. These guidelines are intended to assist you in discharging your obligations when presented by a law enforcement agency and/or CCRA with a warrant to be executed at your law office.

The target of the investigation and the search warrant may be either:

 

  1. You or a lawyer in your firm; or

     

  2. A current or former client.

In either case, your primary professional obligation is to protect solicitor-client privilege and any client information or records which may be in jeopardy as a result of the execution of the search warrant.

Part B - Client is the Subject of Search

Where the law enforcement agency believes the lawyer is in possession of information in the form of files or documents relating to a client that will assist the agency in its investigation of the client, the lawyer's office may be the subject of a search. For example, in proceeds of crime investigations, family lawyers, real estate lawyers, corporate and commercial lawyers and lawyers practicing in the areas of estates and trusts may well be confronted by the law enforcement agency seeking, under warrant, financial information about current or former clients.

Part C - Lawyer is the Subject of Search

Where you or a member of your firm are the subject of the search, you have a professional responsibility to protect any records that are the subject matter of solicitor-client privilege.

Part D - Searches at Common Law

In light of the Supreme Court of Canada's ruling in Lavallee, law office searches and seizures are currently governed by the common law. The Supreme Court articulated the general principles that govern the legality of searches of law offices at common law. They are as follows:

 

  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 as to afford maximum protection of solicitor-client confidentiality.

     

  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 at the time of the execution of the search warrant. Where the lawyer cannot be contacted, a representative of the Bar should be allowed to oversee the sealing and seizure of the 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.

Following Lavallee, the British Columbia Court of Appeal ruled in Festing v. Canada (A.G.), [2003] B.C.J. No. 404 that the Lavallee guidelines should apply to searches of any place where privileged documents may reasonably be expected to be located. This was held to include, for example, a lawyer's home, a lawyer's office in multi-disciplinary business premises, the offices of in-house counsel for a business, and storage facilities where lawyers store their files.

In Maranda v. Richer [2003] SCC 67 the Supreme Court held that a lawyer's fees and disbursements must be presumed, as a general rule in the context of the purposes of law office search and seizure, to fall within the category of information protected by solicitor-client privilege.

Part E - Search and Seizure Procedures

 

  1. When presented with a search warrant, you should treat it as a top priority and remain in attendance for the duration of the search. Do not delegate your responsibility to anyone else in your firm unless absolutely necessary, and then only to a partner or an associate. If during a search the lawyer is not present, a partner, associate or senior member must assert privilege over all documentation. Your non-legal staff should be educated about the search warrant process and be instructed to contact The Law Society of Manitoba where you or a partner or associate are not present and cannot be contacted.

     

  2. Ask to see the original of the search warrant. Read the search warrant carefully and make specific note of the documents being sought. Make a copy of it immediately. In the rare event of a warrantless search, follow the procedures outlined below and address the legality of the search thereafter.

     

  3. It is essential for members to realize that solicitor-client privilege is a client right and must be asserted upon the first contact with the law enforcement agency.

     

  4. You should locate only the documents and financial records described in the warrant. You are to ensure that the law enforcement agency does not have access to or review the documents and that no other client's documents are included in the seizure.

     

  5. Once you locate the documents or financial records specified in the search warrant, you should photocopy them. If this is not practical, you should make an inventory of the records being seized. If this is not practical because of the number of documents or financial records being seized, assert solicitor-client privilege for all documents. Computer records should be copied and copies retained in your office.

     

  6. Once you have located, copied or inventoried the documents and financial records, place the documents and records in your own envelope. Seal and initial it where sealed, and personally place the envelope in the receptacle provided by the law enforcement agency. At no time should the law enforcement officials be allowed to inspect or view the documents. You should personally attend at the sealing of the receptacle in which the documents or financial records are placed.

     

  7. Maintain notes of what transpires during the search. Make every effort to have a third party present who can be a witness should viva voce or affidavit evidence regarding the search be required in any future proceedings. That individual should be encouraged to make contemporaneous notes as well.

     

  8. Where you or a member of your firm is the subject of the search, advise any affected clients to retain independent counsel to deal with any privilege issues.

     

  9. Where you or a member of your firm is not the subject of the search and your client or a former client's records have been seized:

     

    1. Set up an appointment to meet with your client and discuss the issue of solicitor-client privilege and seek instructions. If your client intends to maintain the claim for privilege, you should notify the Crown and consider whether there is a need for your client to retain counsel.

       

    2. Where your client cannot be notified, you ought to review the documents and determine whether a claim for privilege should be advanced. If you are unable to contact your client, you should assert solicitor-client privilege, and take whatever steps are needed to protect your clients' solicitor-client privilege interests before the courts.

       

    3. If you are not familiar with the relevant provisions of the Criminal Code or other applicable legislation dealing with search warrants you should consult, on behalf of your client, a lawyer familiar with this area of the law. This lawyer will examine the validity of the search warrant to see whether or not an application should be made to quash the warrant or other related procedures should be taken to protect solicitor-client privilege.

       

    4. If you are going to represent your client in this matter, familiarize yourself with the procedures to be followed.

If you have any questions, please contact the offices of the Law Society during business hours at 942-5571 and after hours at 792-1602 or 228-0829

 

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