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KILBREATH V. SASKATCHEWAN (ATTORNEY GENERAL)
Date of Judgment: December 8, 2004
Number of Pages: 12
2004 SKQB 489
Q.B.G. A.D. 2004
No. 526 J.C.B.
IN THE QUEEN'S BENCH
JUDICIAL CENTRE OF BATTLEFORD
PERRY KILBREATH, GORDON EMILSON,
HAROLD MCLAREN and LORNE VICKERS
- and -
THE ATTORNEY GENERAL OF SASKATCHEWAN
David M. Gnam for the applicants
K. S. Bartlett for the respondent
M. P. Hudec for the accused
FIAT WILKINSON J.
December 8, 2004
 The issue is whether a search warrant executed against a law office in Ontario is invalid on its face for failing to contain terms and conditions designed to minimize intrusion into, and the potential impairment of, solicitor-client privilege.
 The applicants are Elders representing the Congregation of Jehovah's Witnesses in Lloydminster and North Battleford, Saskatchewan. A member of their North Battleford congregation stands charged with sexual assault in relation to two female members of a third congregation, also located within Saskatchewan. The complainants who made the allegations of sexual assault are sisters-in-law to the accused. The four applicants provided counselling and spiritual assistance to the accused as well as the two complainants. One of the applicants, [the "deponent"] learned that the accused was under investigation and that the police wanted to interview two of the Elders, himself and one of the other applicants, about their counselling meetings with the accused and the complainants. Shortly afterwards, the deponent was advised by the RCMP that a subpoena was being prepared for the congregation's counselling records. [A summary of counselling sessions is, by their traditional religious practices, kept in a sealed envelope in a locked filing cabinet in the local Kingdom Hall in order to safeguard confidentiality. It is accessible only to the Elders who counselled the congregation member and, even then, in significantly restricted circumstances].
 Following this notification, and after consultation with solicitors in Ontario, the deponent forwarded the counselling records in question to the solicitors, for retention at their office. The next day the RCMP presented a search warrant issued on April 27, 2004 [the "place of worship warrant" as the applicants refer to it]. The warrant was issued by a Judge of the Provincial Court in North Battleford and authorized the search and seizure at the Kingdom Hall in North Battleford of "the confidential file and its contents pertaining directly to [the accused's] disclosure, made to the elders of the Jehovah's Witness faith, of the sexual assault committed upon [the complainants]". A copy of the search warrant was faxed to the solicitors office in Ontario. That solicitor offered to immediately take the sealed counselling records to the local police detachment and have it sealed pending a challenge to the search warrant, and a claim of religious privilege.
 On October 1, 2004 a new search warrant was obtained in North Battleford before the same Provincial Court Judge who had issued the earlier warrant. The new warrant [referred to by the applicants as the "law office warrant"] authorized the search and seizure of records, located at the offices of the applicant's solicitors in Ontario, pertaining to any meeting or communication between the Elders of the North Battleford congregation, the accused and the complainants, as well as three other named individuals, which related to the complaints of sexual harassment.
 Like the earlier warrant, the "law office warrant" was obtained under s. 487 of the Criminal Code and contained an order under s. 487.3(1) of the Code prohibiting access to and disclosure of any information submitted in support of the issuance of the warrant, unless otherwise ordered by the court. There were no other conditions or terms imposed regarding the execution of the warrant, other than that it was to be executed between the hours of 9:00 a.m. and 5:00 p.m. The warrant was endorsed for execution in Ontario under the relevant provisions.
 On the instructions of the Crown prosecutor in North Battleford, the Ontario solicitor was given notice the day before the execution of the warrant. The Ontario solicitor agreed to cooperate on the basis the records seized would be sealed by the police, until a claim of privilege could be determined by a judge. The following day, October 13, 2004, the search warrant was executed and, as requested by the applicants, the envelope containing the counselling records was sealed and placed in the custody of the Provincial Court Judge in Saskatchewan who had authorized the search warrant.
 The applicants now apply to the Court of Queen's Bench for Charter remedies, namely an order quashing the warrants for infringement of the applicant's rights to freedom of conscience and religion, freedom of expression, security against unreasonable search and seizure, and security of the person, and for an order returning the documents seized to the possession of the applicants. The applicants also seek an order under s. 487.3(3) and (4) of the Criminal Code to permit the examination of the officer or officers who obtained the warrants and for a hearing on the substantive issues raised by their motion.
 In respect of the "law office warrant" the applicants seek an immediate order quashing the warrant for facial invalidity due to the absence of terms and conditions in the warrant itself designed to minimize any intrusion upon solicitor-client privilege.
 This Court assumed jurisdiction to deal with the issues. As noted in R. v. Ciarniello,  O.J. No. 3457 (Ont. S.C.J.) (QL), generally speaking, the proper forum for the consideration and enforcement of Charter rights is the trial court. However, where the applicants are not the accused, and are not charged with any offence, the competent court is the Superior Court in the exercise of its inherent jurisdiction (relying on R. v. Mills (1986), 26 C.C.C. (3d) 481 (S.C.C.) at 566 and R. v. Seaboyer (1991), 66 C.C.C. (3d) 321 (S.C.C.) at 413). In the Ciarniello case, the Judge also commented that if there are independent Charter breaches, apart from any s. 8 analysis entailed in the application to quash the warrant, the Superior Court is the appropriate court in which to pursue a remedy under s. 24(1) of the Charter.
 For present purposes, the applicable law pertaining to searches of a solicitors office can be summarized briefly, as follows:
(1) Section 488.1 of the Code setting out a procedure for determining a claim of solicitor-client privilege in relation to documents seized from a law office under a warrant was declared by the Supreme Court to be constitutionally invalid in Lavallee, Rackel & Heintz v. Canada (Attorney General); White, Ottenheimer & Baker v. Canada (Attorney General); R. v. Fink,  3 S.C.R. 209, 2002 SCC 61.
(2) In the Lavallee decision, Arbour J. laid down ten guidelines for the protection of solicitor-client privilege that were applicable to law office searches until new legislation was in place. 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 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 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.
(3) As to the issue of whether documents are "known" to be protected by solicitor-client privilege, there is now a presumption that lawyer's bills of account are prima facie privileged. However, where the Crown believes that disclosure of this 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 issuance of the warrant. The issuing judge will have to be satisfied of this by a careful examination of the application, which decision is subject to review. Maranda v. Richer, 2003 SCC 67,  3 S.C.R. 193.
(4) Section 487 of the Code is constitutional in respect of law office searches, provided that the guidelines set out in Lavallee are followed: R. v. Piersanti & Co.,  O.J. No. 23 (C.A.) (QL) ; application for leave to appeal dismissed on June 5, 2003 at  S.C.C.A. No. 105 (S.C.C.).
 Counsel for the applicants argues that there is a presumption of privilege for documents such as the ones in question when they are seized from a law office. I believe this is an overly broad interpretation of the case law. As a result of Maranda, clearly lawyer's bills of accounts are now to be treated as prima facie privileged, subject to the contrary being adequately asserted and the assertions withstanding review. LeBel J. made it quite clear at para. 19 of his judgment in Maranda that a procedure whereby a relatively minimal amount of information that could have been gathered by other means was obtained from the lawyer would undoubtedly be tolerable and within the principle of minimal intrusion. Further, it is not every document forwarded to, prepared by, or received by a lawyer's office that is presumptively privileged merely by virtue of its location. The Supreme Court in Maranda at para. 30 recognized that "...not everything that happens in the solicitor-client relationship falls within the ambit of privileged communication...".
 In the Law of Evidence (3rd) ed. (2002), D.M. Paciocco & L. Stuesser, Chapter 7, dealing with solicitor-client privilege, the authors comment that privilege cannot be used to shield the client from disclosing otherwise non-privileged material. For example a client facing a tax audit cannot send financial records to a lawyer and seek refuge from disclosure; the privilege does not apply to documents that existed prior to the solicitor-client relationship. Nor does the privilege apply to physical objects that are not communications between the lawyer and client, notwithstanding that discussions between them regarding the objects may be privileged. As a case in point, they refer to the infamous Bernardo videotapes taken into the possession of his legal counsel. The tapes pre-existed the solicitor-client relationship and were not privileged, notwithstanding that discussions about them may have been.
 In Kranz v. Canada (Attorney General),  B.C.J. No. 182 (B.C.S.C.) (QL) the Court notes that a number of the documents that were in the possession of the law firm were merely being held by the firm. As such they were confidential, but not privileged.
 The court in that case referred to the Report of the Special Committee of the Canadian Bar Association - Ontario, Regarding Solicitor-Client Privilege (1985) where the Committee indicates that the limits of solicitor-client privilege may not always be fully understood by members of the legal profession and undertakes a careful explanation of the extent to which the privilege does apply. Thus, in addition to the four essential conditions outlined in the classic statement from 8 Wigmore, Evidence Section 2285 (McNaughton rev. 1961) ((1) Communication originating in confidence; (2) Confidentiality is essential to the relationship; (3) Relationship is one to be sedulously fostered by the community; (4) Injury from disclosure would be greater than benefit gained), the Committee report describes the four additional conditions that must be established before the solicitor-client privilege applies, namely:
1. There must be a communication, whether oral or written;
2. The communication must be of a confidential nature;
3. The communication must be between a client (or his agent) and a legal advisor; and
4. The communication must be directly related to the seeking, formulating, or giving of legal advice.
 The committee indicates it is these four conditions that are often misunderstood or forgotten by lawyers who mistakenly believe that whatever they do and whatever they are told is privileged merely by the fact that they are lawyers.
 Thus, as examples that are by no means exhaustive, the solicitor-client privilege does not attach to documents unrelated to the giving of proper advice, but stored with the solicitor to avoid seizure. (R. v. Colvin, Ex parte Merrick,  3 O.R. 612 (Ont. H.C.J.)). The privilege does not apply to documents merely held by the lawyer, including accounting records and trust reconciliations, conveyancing documents and documents relating to the sale of property where no advice was sought or given in respect of them: Kranz, supra. It does not apply to actual currency, which does not communicate any information other than the value of the individual bill: R. v. Law Office of Simon Rosenfield,  O.J. No 5821 (S.C.J.) (QL). It does not apply to deposits of funds into a lawyer's trust account unrelated to the giving or receiving of advice, but merely to protect the funds from seizure: R. v. Serfaty, O.J. No 1952 (S.C.J.)(QL). It does not apply where the connection between the parties is more in the nature of a business or commercial relationship, or where the disclosure sought is of actions taken, rather than communications passing between solicitor and client, or where the communications are in furtherance of criminal or fraudulent activity. It does not apply to documents if the client possessing the privilege exercises the right to waive the privilege either expressly, or implicitly in a manner acceptable to the court: Rosenfeld, supra, and R. v. Serfaty, supra.
 The solicitor for the applicants argues that the counselling records forwarded to his office just before the execution of the"place of worship warrant" could contain matters covered by solicitor-client privilege, in the sense that perhaps legal advice was sought or rendered in the process of counselling that may appear in the counselling notes. Accordingly, he says, the presumption of privilege should apply.
 Here, the assertion of privilege is made in circumstances that, at first blush, are not representative of the classic situation. These counselling records are not documents that prima facie appear to be matters protected by a solicitor-client privilege belonging to the Elders. As such, it called for the exercise of some speculation on behalf of counsel for the applicants regarding the invocation of solicitor-client privilege. It was never positively asserted in the deponent's affidavit that the counselling records actually contained confidential solicitor-client communications between the Elders and their solicitors. Presumably the deponent is in a position to know that information, since it is the privilege of the Elders that is being asserted.
 For all that is known, it is quite possible the counselling notes predated the solicitor-client relationship in this case. Given the Elder's strict requirement to maintain the confidentiality of counselling sessions, as outlined in the deponent's affidavit in support of the application, one wonders whether any information arising out of counselling sessions could have been discussed with any third party, even the Congregation's legal counsel, without some potential breach of the Elders' own canons of confidentiality? If there is a potential argument that the Elders, in the course of counselling sessions, contacted legal counsel as agent for any of the individuals being counselled, [I say potential, because the argument was not advanced before me] the privilege belongs to the principals themselves, not the Elders, and it is for the principals to assert the privilege. As it stands there is nothing pointing to the existence of privileged communications between the Elders and their legal counsel, beyond the speculation of counsel, unless there exists in law a presumption that any document seized from a law office is, ipso facto, privileged. That, as I have indicated, is an interpretation of Maranda that is not supportable.
 As noted earlier, in circumstances where documents are not known to be covered by solicitor-client privilege, (or prima facie presumed to be so protected) the judgment in Maranda at para. 34 provides as follows:
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 the 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....
 The issue of whether the issuing justice was "rigorously demanding" to use the terminology in condition No. 2 in Lavallee, is obviously related to, and inseparable from considerations as to the extent any solicitor-client privilege is in jeopardy of being breached. If there were allegations put before the issuing justice that cast serious doubt upon the existence of any such privilege having regard to the asserted facts and the pertinent case law, obviously the onus on the issuing justice can be met without difficulty.
 These are issues that can be addressed on the inquiry into the subfacial validity of the warrant. I am not prepared to hold that the "law office warrant" is invalid on its face for failing to attach terms and conditions designed to minimize violation of solicitor-client privilege. It is true that in Descoteaux et al v. Mierzwinski,  1 S.C.R. 860 the Supreme Court of Canada stated at para 75 that the justice issuing the warrant for a search of a lawyers office MUST set out procedures for the execution of the warrant designed to protect the solicitor-client privilege as much as possible. It is for that reason that s. 488.1 of the Criminal Code was introduced, only to be later struck down in Lavallee.
 In Lavallee, Arbour J. specifically noted at para. 49 that while she was articulating the general principles that govern the legality of searches of law offices, much like those earlier formulated in Descoteaux, supra, the guidelines that she laid down were meant to reflect the present-day constitutional imperatives for the protection of solicitor-client privilege, and to govern both the search authorization process and the general manner in which the search must be carried out. She was careful to add that "... in this connection, however, they are not intended to select any particular procedural method of meeting these standards...". In other words, provided the Lavallee guidelines are otherwise met, a search warrant in regard to a law office is not open to attack for facial invalidity, simply because the warrant itself does not set out terms and conditions designed to prevent impairment of solicitor-client privilege. Here, the issue of whether the warrant is otherwise invalid for failure to comply with the Lavallee requirements will be an issue for further exploration in the hearing which I am directing.
 As to the assertion of religious privilege, there are issues to be considered under the principle approach and case-by-case analysis approved by the Supreme Court of Canada in R. v. Gruenke,  3 S.C.R. 263, as interpreted in R. v. C.T.C.,  O.J. No. 2131 (Prov. Ct.) (QL) and in R. v. J.J.P. (2000), 196 Nfld. & P.E.I.R. 142 (Nfld. S.C.) [the latter cases both dealing with the issues of religious or ecclesiastical privilege as it pertains to the Congregation of Jehovah's Witnesses].
 The parties are in agreement that approximately three days should be set aside for the hearing. The Crown also wishes to cross-examine the deponent on his affidavit filed in support of this motion. Based on the availability of counsel, the most convenient dates for the hearing would be January 18, 19 and 20, 2005 or January 24, 25, and 26, 2005. If either of those selected dates are unavailable, the registrar shall schedule dates in consultation with counsel.
 There will be an order for a hearing of the applications to quash the search warrants, an order to permit the examination, if necessary, of the officer or officers who obtained the impugned search warrants, and an order for the cross-examination of the deponent, all for the purpose of determining whether the impugned search warrants should be quashed, and whether there has been a breach established in relation to the applicants Charter rights, and/or common-law privileges, which require return to the applicants of the documents seized.
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