Canada (Attorney General) v. Several Clients and Several Solicitors, (2002) 203 N.S.R.(2d) 199 (CA)

• Judge: Glube, C.J.N.S., Saunders and Oland, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: March 28, 2002
• Jurisdiction: Nova Scotia
• Citations: (2002), 203 N.S.R.(2d) 199 (CA);2002 NSCA 44

Can. (A.G.) v. Several Clients (2002), 203 N.S.R.(2d) 199 (CA);

 635 A.P.R. 199

MLB headnote and full text

Temp. Cite: [2002] N.S.R.(2d) TBEd. AP.036

Attorney General of Canada (appellant) v. Several Solicitors and Several Clients (respondents)

(CAC 173380; 2002 NSCA 44)

Indexed As: Canada (Attorney General) v. Several Clients and Several Solicitors

Nova Scotia Court of Appeal

Glube, C.J.N.S., Saunders and Oland, JJ.A.

March 28, 2002.

Summary:

Search warrants obtained pursuant to s. 487 of the Criminal Code were executed upon law offices and files were seized. Section 488.1 of the Code governed the seizure of documents from law offices and the procedure for a claim of solicitor-client privilege with respect to seized documents. An application was brought to challenge the constitutionality of s. 488.1 on the basis that it breached s. 8 of the Charter.

The Nova Scotia Supreme Court, in a de­cision reported at 189 N.S.R.(2d) 313; 590 A.P.R. 313, held that s. 488.1 breached s. 8 of the Charter and could not be saved by s. 1 of the Charter. The Attorney General of Canada appealed.

The Nova Scotia Court of Appeal, in a de­cision reported at 197 N.S.R.(2d) 42; 616 A.P.R. 42, dismissed the appeal. The At­torney General of Canada submitted that despite the decision on the constitutionality of s. 488.1, a privilege hearing should be conducted in respect of the seized files.

The Nova Scotia Supreme Court, in a de­cision reported at 197 N.S.R.(2d) 43; 616 A.P.R. 43, held that post s. 488.1, the pro­cedures to be followed when issuing a search warrant in connection with a law office were

those set forth in Descôteaux v. Mierzwinski (S.C.C.) and the issuing justice had to attach terms of execution to the warrant that were designed to protect the right to confidentiali­ty of the lawyers' clients as much as pos­sible. The court quashed the warrants and directed that the sheriff retain the documents for 30 days in order to allow the Crown to apply for new search warrants. The Attorney General appealed.

The Nova Scotia Court of Appeal dis­missed the appeal.

Criminal Law - Topic 3055

Special powers - Search warrants - Execu­tion of - Law offices - Search warrants obtained pursuant to s. 487 of the Criminal Code were executed upon law offices and files were seized - Section 488.1 of the Criminal Code, which governed the seizure of documents from law offices and the procedure for a claim of solicitor-client privilege with respect to seized documents, was found to be unconstitutional - The Attorney General of Canada submitted that despite the decision on the constitutionality of s. 488.1, a privilege hearing should be conducted in respect of each file - The Nova Scotia Supreme Court held that post s. 488.1, the procedures to be followed when issuing a search warrant in connec­tion with a law office were those set forth in Descôteaux v. Mierzwinski (S.C.C.) and the issuing justice had to attach terms of execution to the warrant that were designed to protect the right to confiden­tiality of the lawyers' clients as much as possible - The court quashed the warrants and directed that the sheriff retain the documents for 30 days in order to allow the Crown to apply for new search war­rants - The Nova Scotia Court of Appeal dismissed an appeal.

Evidence - Topic 4245.3

Witnesses - Privilege - Lawyer-client communications - Privilege - Law office searches - [See Criminal Law - Topic 3055 ].

Counsel:

David W. Schermbrucker, for the appel­lant;

Anne S. Derrick, Q.C., for a respondent.

This appeal was heard on March 28, 2002, before Glube, C.J.N.S., Saunders and Oland, JJ.A., of the Nova Scotia Court of Appeal. The following judgment of the Court of Ap­peal was delivered orally by Oland, J.A., on March 28, 2002, and written reasons were released on April 3, 2002.