Special Locations: Law Office and Media Searches

• Author: David Schermbrucker/Randy Schwartz/Mabel Lai/Nader Hasan
• Pages: 457-500



Special Locations:

LawOffice and

Media Searches

13

I. Law Oce Searches ....................................... 

A. The Lavallee Rules ................................... 

B. Extension of the Lavallee Principles ..................... 

C. Practice Considerations and Guidelines ................. 

D. Remedies .......................................... 

II. Media Searches .......................................... 

A. The Common Law Constitutional Framework ............. 

B. The Journalistic Sources Protection Act .................. 

Appendix A: Sample Law Oce Warrant ...................... 

Appendix B: Sample Law Oce Search Warrant ................ 

© [2021] Emond Montgomery Publications. All Rights Reserved.

Search and Seizure

The law of search and seizure is invariably contextual. One’s reasonable expectation

of privacy varies with the location and the circumstances of the search. Some loca-

tions, however, are suciently unique to require special consideration. Law oces

are unique because the fruits of the search will invariably include material that is

protected by solicitor – client privilege. Searches that target journalists and media

organizations are unique because a journalist’s work is integrally connected to the

constitutionally protected freedom of the press. This chapter grapples with these two

special locations.

I. Law Oce Searches

The law jealously protects solicitor – client privilege. As the Supreme Court of Canada

has repeatedly held, solicitor – client privilege is “fundamental to the proper function-

ing of our legal system”1 and “must remain as close to absolute as possible if it is to

retain relevance.”2 Historically, the privilege developed as a rule of evidence, but

today it is also a principle of fundamental justice protected by section 7 of the Char-

ter.3 Because of the importance of solicitor – client privilege in preserving the integrity

of our legal system, sections 7 and 8 of the Charter provide robust protection against

unreasonable searches of law oces and places where solicitor – client privileged ma-

terials are known to be.

Although section 488.1 of the Criminal Code enacts a statutory framework govern-

ing the searches of law oces, law oce searches are governed primarily by a common

law constitutional framework, which the Supreme Court of Canada outlined in Lavallee

v Canada (AG)4 and which has been further developed in subsequent cases following

Lavallee.

A. The Lavallee Rules

A law oce search is unreasonable under section 8 of the Charter unless there is a high

level of protection for material subject to solicitor – client privilege.5 In Lavallee, the

Supreme Court of Canada considered, and ultimately struck down, the search regime

under section 488.1 of the Criminal Code,6 which set out a procedure for searching a

1 Canada (Privacy Commissioner) v Blood Tribe Department of Health, 2008 SCC 4 at para 9.

2 Canada (AG) v Federation of Law Societies of Canada, 2015 SCC 7 at para 44, citing Lavallee

vCanada (AG), 2002 SCC 61 at para 36.

3 See e.g. Canada (National Revenue) v Thompson, 2016 SCC 21 at para 17; R v McClure, 2001

SCC 14 at para 47; Lavallee, supra note 2 at para 16.

4 Supra note 2.

5 Federation, supra note 2 at para 36.

6 Lavallee, supra note 2.

© [2021] Emond Montgomery Publications. All Rights Reserved.

Chapter  Special Locations: LawOce and Media Searches 

lawyer’s oce. Parliament had enacted section 488.1 in response to the Court’s earlier

decision in Descôteaux v Mierzwinski,7 in which the Court urged Parliament to create

measures to protect solicitor – client privilege during law oce searches.8 Although

section 488.1 was created for the express purpose of ensuring respect for solicitor – client

privilege during a police search of a lawyer’s oce, the Court concluded that it fell

short of the constitutionally mandated mark. Because Parliament had not taken “all

required steps to ensure that there is no deliberate or accidental access to [privileged]

information,” section 488.1 violated section 8 of the Charter and was of no force or

eect.9 To date, Parliament has not amended section 488.1, and as such, interested

parties must look to Lavallee for the governing framework.

7 [1982] 1 SCR 860, 1982 CanLII 22.

8 Lavallee, supra note 2 at para 11.

9 Ibid at para 25. More recently, the Supreme Court of Canada held that s231.2 of the Income

Tax Act (RSC 1985, c 1 (5th Supp)) violated s8 of the Charter by excluding solicitor’s accounts

from the scope of solicitor – client privilege, with the eect that the Minister of National Rev-

enue could compel lawyers to provide such documents. The Court held that the provisions

violated s8 in part because they were not minimally impairing, e.g. by not including a require-

ment that the Minister notify the clients of an aected lawyer and because the provisions

placed an undue burden on lawyers. See Canada (AG) v Chambre des notaires du Québec, 2016

SCC 20 at paras 45-57.

10Lavallee, supra note 2 at para 36; see also Federation, supra note 2 at para 44.

11Ibid.

12Lavallee, supra note 2 at paras 39-46.

PRACTICE POINTS

Do not look to section . when confronted with a law oce search and seizure

issue. Section . is a vestigial provision that is of no force or eect. Lavallee

and the case law following it govern law oce searches.

The core principle of Lavallee is that solicitor – client privilege “must remain as

close to absolute as possible if it is to retain relevance.”10 The Lavallee rules flow from

that overarching principle. As a result, there must be a “stringent” norm to ensure

the protection of solicitor – client privilege. Any legislative provisions that interfere

with the privilege more than is “absolutely necessary” are unreasonable.11

In considering whether section 488.1 minimally impaired solicitor – client privilege,

in Lavallee, the Supreme Court of Canada identified numerous constitutional infir-

mities.12 First, the protections of the scheme were triggered only after the lawyer had

asserted that a named client had a solicitor – client privilege interest in the documents

© [2021] Emond Montgomery Publications. All Rights Reserved.