Maranda v. Leblanc, (2003) 311 N.R. 357 (SCC)

• Judge: McLachlin, C.J.C., Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps, JJ.
• Court: Supreme Court (Canada)
• Case Date: May 12, 2003
• Jurisdiction: Canada (Federal)
• Citations: (2003), 311 N.R. 357 (SCC);2003 SCC 67

Maranda v. Leblanc (2003), 311 N.R. 357 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2003] N.R. TBEd. NO.024

Léo-René Maranda (appellant) v. Corporal Normand Leblanc, in his capacity as informant (respondent) and The Attorney General of Quebec, The Canadian Bar Association, The Barreau du Québec and The Federation of Law Societies of Canada (interveners) and The Honourable Carol Richer, J.C.Q., in his capacity as Justice of the Peace, the Clerk of the Peace and the Crown of the District of Terrebonne, The Sheriff of the District of Terrebonne, The Association québécoise des avocats et avocates de la défense and The Association des avocats de la défense de Montréal (mis en cause)

(28964; 2003 SCC 67; 2003 CSC 67)

Indexed As: Maranda v. Leblanc

Supreme Court of Canada

McLachlin, C.J.C., Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps, JJ.

November 14, 2003.

Summary:

Police suspected that Charron was involved in money laun­dering and drug trafficking. In the course of the criminal investigation, a mem­ber of the RCMP (Cpl. Leblanc) applied for authoriz­ation to search the office of Char­ron's law­yer (Maranda) for documents relat­ing to fees and disbursements billed to or paid by Char­ron. The search took place without any notice to Maranda. However, the police alerted the Syndic of the Barreau du Québec and a representative of the Syndic attended when the search was conducted. Maranda applied for certiorari to quash the search warrant. The Crown conceded that the search was void by reason of a serious defect in the affidavit filed in support of the appli­cation for authorization.

The Quebec Superior Court decided to con­tinue hearing the case notwithstanding the Crown's concession. In a judgment reported at [1998] R.J.Q. 481, the court allowed the application for certiorari and quashed the search warrant and the pro­cedures that had been carried out under the authority of the warrant, declaring them to have been unlaw­ful and unreason­able. The court found that Cpl. Leblanc's affidavit failed to meet the duty to establish that the things or informa­tion sought could not rea­sonably have been obtained by other means. Second, the court held that solicitor-client privilege covered the amount of fees and disbursements billed by a lawyer to his or her client, even in the absence of any other details concerning the nature of the pro­fessional services rendered. Third, the court concluded that the authoriz­ing judge must try to minimize any vio­lations of privi­lege and the fact that there was no minimization clause could make the search unreasonable. Cpl. Leblanc appealed.

The Quebec Court of Appeal, in a judg­ment reported at [2001] R.J.Q. 2490, al­lowed the appeal. The court held that the authorizing judge had retained jurisdiction, even though he did not impose a minimiza­tion clause or require that notice be given to the lawyer or that the lawyer be present. In addition, the court held that the information about the amount of the fees and disburse­ments was not privileged. The court also raised, on its own motion, the question of the crime exception to solicitor-client privi­lege. The court concluded that the allegations made by Cpl. Leblanc in his affidavit pro­vided a basis for applying that exception. Maranda appealed.

The Supreme Court of Canada allowed the appeal. The court held that the search and seizure were unreasonable and abusive be­cause of the breach of the duty to mini­mize and the failure to contact the lawyer. The court also held that the information relating to the lawyer's fees and disburse­ments was privileged and that the Court of Appeal should not have applied the crime exception. Deschamps, J., dissenting in part, was of the view that the amount of the fees paid by a client should not be characterized as pro­tected by solicitor-client privilege.

Barristers and Solicitors - Topic 1644

Relationship with client - Confidential communications - Lawyer's accounts - The Supreme Court of Canada held that infor­mation relating to a lawyer's fees and disbursements was privileged - The court stated that "when authorization is sought for a search of a lawyer's office, the fact con­sisting of the amount of the fees must be regarded, in itself, as information that is, as a general rule, protected by solicitor-client privilege ... Because of the diffi­culties inherent in determining the extent to which the infor­mation contained in lawyers' bills of account is neutral infor­mation, and the im­portance of the constitu­tional values that disclosing it would en­danger, recognizing a presumption that such information falls prima facie within the privileged category will better ensure that the objectives of this time-honoured privilege are achieved. That presumption is also more consistent with the aim of keeping impairments of solici­tor-client privilege to a minimum ... 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" - See paragraphs 33 to 34.

Barristers and Solicitors - Topic 1650

Relationship with client - Confidential communications - Loss of privilege where communications used to facilitate crime - Police suspected that Charron was involved in money laundering and drug trafficking -In the course of the criminal investigation, the RCMP obtained an author­ization to search the office of Charron's lawyer for docu­ments relating to fees and dis­burse­ments billed to or paid by Charron - The Quebec Superior Court allowed an applica­tion for certiorari and quashed the search warrant - The court found, inter alia, that solicitor-client privi­lege covered the amount of fees and dis­bursements billed by a lawyer to a client and that the authoriz­ing judge did not meet the duty to mini­mize violations of that privilege - On ap­peal, the Quebec Court of Appeal raised, on its own motion, the question of the crime exception to solici­tor-client privilege and concluded that there was a basis for applying that excep­tion - The Supreme Court of Canada held that the Court of Appeal should not have applied the crime excep­tion - The infor­mant had not alleged that exception and the Crown had not ar­gued it in the Superior Court - None of the allega­tions and facts required if the crime excep­tion were to be applied were present - See paragraphs 35 to 36.

Civil Rights - Topic 1646

Property - Search and seizure - Unreason­able search and seizure defined - [See first Criminal Law - Topic 3055 ].

Courts - Topic 2103

Jurisdiction - Appellate jurisdiction - Issues - [See Barristers and Solicitors - Topic 1650 ].

Criminal Law - Topic 3055

Special powers - Search warrants - Execu­tion of - Law offices - Police suspected that Charron was involved in money laun­dering and drug trafficking - In the course of the criminal investigation, the RCMP obtained an author­ization to search the office of Charron's lawyer for docu­ments relating to fees and dis­burse­ments billed to or paid by Charron - The search took place without any notice to the lawyer - How­ever, the police alerted the Syndic of the Barreau du Québec and a representative of the Syndic attended when the search was conducted - The Supreme Court of Canada held that the search and seizure were un­reasonable and abusive because of the breach of the duty to minimize and the failure to contact the lawyer - The court stated that there was nothing in the appli­cation for authorization to indicate why notice should not or could not have been given to the lawyer - That defect affected the validity of the pro­cedure by which the search was authorized and the execution of the search and it contributed to making the operation abus­ive and unreasonable within the meaning of s. 8 of the Charter - See paragraph 20.

Criminal Law - Topic 3055

Special powers - Search warrants - Execu­tion of - Law offices - The Supreme Court of Canada discussed the duty in Canadian criminal law to minimize impairments of solicitor-client privilege when a search in a lawyer's office was authorized and executed - The court stated that "There are two aspects to this duty. First, it requires that a search not be authorized unless there is no other reasonable solution. Second, the authorization must be given in terms that, to the extent possible, limit the impairment of solicitor-client privilege. The search must be executed in the same way" - The court also stated that "The existence of the principle of minimization must be reflected in the way that the application for author­ization is worded, and in particular in the wording of the affidavits presented in support. The affidavit must contain allega­tions that are sufficiently precise and com­plete that the authorizing judge is able to exercise his or her jurisdiction with full knowledge of the facts" - See paragraphs 14 to 17.

Criminal Law - Topic 3055

Special powers - Search warrants - Execu­tion of - Law offices - Police suspected that Charron was involved in money laun­dering and drug trafficking - In the course of the criminal investigation, the RCMP obtained an author­ization to search the office of Charron's lawyer for docu­ments relating to fees and dis­burse­ments billed to or paid by Charron - The search took place without notice to the lawyer - However, the police alerted the Syndic of the Bar­reau du Québec and a representative of the Syndic attended during the search - The Supreme Court of Canada stated that as useful as it might seem to have a law society representative present, there was still a duty to inform the lawyer and the persons concerned for the purpose of en­suring that solicitor-client privilege was effectively protected - The application for authorization and the authorization itself had to provide for a method of informing the lawyer to alert him or her to the oper­ation it was proposed to conduct in his or her office - However, circumstances could arise where that information would jeop­ardize the criminal investigation and the proposed seizure - In such a case, it would be up to the authorizing judge to exercise his or her power to assess the situation and to require that appropriate measures be taken to limit breaches of privilege - The law society would then have to be informed so that its representative could be present at the search and take the necessary steps to avoid any breach of solicitor-client privilege - See paragraph 20.

Criminal Law - Topic 3055

Special powers - Search warrants - Execu­tion of - Law offices - Police suspected that Charron was involved in money laun­dering and drug trafficking - In the course of the criminal investigation, the RCMP obtained an author­ization to search the office of Charron's lawyer for docu­ments relating to fees and dis­burse­ments billed to or paid by Charron - The Supreme Court of Canada held that the application for the authorization to search did not comply with the duty to minimize - It was neither alleged nor established that there was no other reasonable alternative and that the information sought could not be obtained using other sources - The court stated that "A search and seizure procedure for the purpose of acquiring information half of which could have been obtained in another manner violates the duty to mini­mize. Nor does executing the search during business hours and making off with a large quantity of documents comply with the principle of minimization" - See paragraphs 18 to 19.

Criminal Law - Topic 3097

Special powers - Issue of search warrants -Contents of information or application for issue of - [See second Criminal Law - Topic 3055 ].

Criminal Law - Topic 3105

Special powers - Issue of search warrants -Privileged or confidential documents - [See Barristers and Solicitors - Topic 1644 ].

Criminal Law - Topic 3187

Special powers - Setting aside search warrants - Grounds - Documents available from other sources - [See fourth Criminal Law - Topic 3055 ].

Criminal Law - Topic 4985

Appeals - Indictable offences - Powers of Court of Appeal - Powers re grounds not raised on appeal - [See Barristers and Solicitors - Topic 1650 ].

Evidence - Topic 4245.3

Witnesses - Privilege - Lawyer-client communications - Privilege - Law office searches - [See Barristers and Solicitors -Topic 1644 and second and third Crimi­nal Law - Topic 3055 ].

Evidence - Topic 4245.6

Witnesses - Privilege - Lawyer-client communications - Privilege - Lawyer's accounts - [See Barristers and Solicitors -Topic 1644 ].

Evidence - Topic 4251

Witnesses - Privilege - Lawyer-client communications - Loss of privilege - Communications respecting crime - [See Barristers and Solicitors - Topic 1650 ].

Cases Noticed:

Lavallee, Rackel & Heintz et al. v. Canada (Attorney General), [2002] 3 S.C.R. 209; 292 N.R. 296; 312 A.R. 201; 281 W.A.C. 201; 217 Nfld. & P.E.I.R. 183; 651 A.P.R. 183; 164 O.A.C. 280; 4 Alta. L.R.(4th) 1; 216 D.L.R.(4th) 257, appld. [paras. 2, 59].

Descoteaux et al. v. Mierzwinski et al., [1982] 1 S.C.R. 860; 44 N.R. 462; 141 D.L.R.(3d) 590; 70 C.C.C.(2d) 385, appld. [paras. 10, 52].

Solosky v. Canada, [1980] 1 S.C.R. 821; 30 N.R. 380; 16 C.R.(3d) 294; 105 D.L.R.(3d) 745; 50 C.C.C.(2d) 495, refd to. [paras. 11, 42].

R. v. Fosty and Gruenke, [1991] 3 S.C.R. 263; 130 N.R. 161; 75 Man.R.(2d) 112; 6 W.A.C. 112; 8 C.R.(4th) 368; 67 C.C.C.(3d) 289; 7 C.R.R.(2d) 108, refd to. [paras. 11, 54].

R. v. McClure (D.E.), [2001] 1 S.C.R. 445; 266 N.R. 275; 142 O.A.C. 201, refd to. [paras. 12, 52].

R. v. Brown (J.D.), [2002] 2 S.C.R. 185; 285 N.R. 201; 157 O.A.C. 1, refd to. [paras. 12, 52].

R. v. Araujo (A.) et al., [2000] 2 S.C.R. 992; 262 N.R. 346; 143 B.C.A.C. 257; 235 W.A.C. 257; 193 D.L.R.(4th) 449, refd to. [para. 17].

Rieger et al. v. Burgess et al. (1989), 76 Sask.R. 184 (Q.B.), refd to. [para. 27].

R. v. Joubert (R.M.) (1992), 7 B.C.A.C. 31; 15 W.A.C. 31; 69 C.C.C.(3d) 553 (C.A.), refd to. [para. 27].

Kruger Inc. v. Kruco Inc., [1988] R.J.Q. 2323, dist. [para. 27].

Stevens v. Prime Minister (Can.), [1998] 4 F.C. 89; 228 N.R. 142 (F.C.A.), refd to. [para. 27].

Hodgkinson v. Simms, [1989] 3 W.W.R. 132; 55 D.L.R.(4th) 577 (B.C.C.A.), refd to. [para. 27].

Madge v. Thunder Bay (City) (1990), 72 O.R.(2d) 41 (H.C.), refd to. [para. 27].

Municipal Insurance Association (B.C.) v. Information and Privacy Commissioner (B.C.) (1996), 143 D.L.R.(4th) 134 (B.C.S.C.), refd to. [para. 27].

Ontario (Securities Commission) v. Grey­mac Credit Corp. (1983), 41 O.R.(2d) 328 (Div. Ct.), refd to. [para. 30].

Amadzadegan-Shamiradi v. Polak, [1991] R.J.Q. 1839 (C.A.), refd to. [para. 36].

R. v. Campbell (J.) and Shirose (S.), [1999] 1 S.C.R. 565; 237 N.R. 86; 119 O.A.C. 201, refd to. [para. 49].

Authors and Works Noticed:

Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (2nd Ed. 1999), pp. 713 to 715 [para. 11]; 734 [paras. 31, 48].

Counsel:

Giuseppe Battista, for the appellant;

Bernard Laprade and Bernard Mandeville, for the respondent;

Gilles Laporte and Benoit Lauzon, for the intervener, the Attorney General of Que­bec;

Denis Jacques, for the intervener, Cana­dian Bar Association;

Louis Belleau, for the intervener, Barreau du Québec;

Jean-Claude Hébert, for the intervener, Federation of Law Societies of Canada.

Solicitors of Record:

Shadley Battista, Montréal, Quebec, for the appellant;

Attorney General of Canada, Ottawa, Ontario, for the respondent;

Department of Justice, Sainte-Foy, Que­bec, for the intervener, the Attorney General of Quebec;

Grondin Poudrier Bernier, Québec, Que­bec, for the intervener, Canadian Bar Association;

Filteau & Belleau, Montréal, Quebec, for the intervener, Barreau du Québec;

Hébert, Bourque & Downs, Montréal, Quebec, for the intervener, Federation of Law Societies of Canada.

This appeal was heard on May 12, 2003, before McLachlin, C.J.C., Gonthier, Iacobuc­ci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps, JJ., of the Supreme Court of Canada. The judgment of the Supreme Court was delivered in both official languages on November 14, 2003, including the following opinions:

LeBel, J. (McLachlin, C.J.C., Gonthier, Iacobucci, Major, Bastarache, Binnie and Arbour, JJ., concurring) - see para­graphs 1 to 38;

Deschamps, J., dissenting in part - see paragraphs 39 to 61.