The Principles of Fundamental Justice and s. 488.1 of the Criminal Code
Criminal Law Quarterly, Vol. 45, p. 233, 2001
16 Pages Posted: 22 Aug 2010
Date Written: 2001
In Descoteaux v. Mierzwinski, a pre-Charter case, the Supreme Court of Canada held that solicitor-client privilege was not just a rule of evidence but a substantive rule, protecting the confidentiality of communications between solicitor and client both inside and outside the courtroom. The Court ruled that any search of a lawyer’s office would have to be designed to protect the right to solicitor-client confidentiality as far as possible. In response to Descoteaux, Parliament enacted s. 488.1 of the Criminal Code, laying out a procedure for establishing claims of solicitor-client privilege for documents seized in a search of a lawyer’s office. That section has recently come under Charter scrutiny and found to be unconstitutional in a number of cases. The purpose of this article is to argue that s. 488.1 is indeed constitutionally deficient, though not for precisely the reasons that have been given in these cases.
While it is possible to construe s. 488.1 as offending s. 8 of the Charter because it permits an unreasonable search of a lawyer’s office, I argue that this construction depends upon solicitor-client privilege being identified as a principle of fundamental justice. With this principle in hand, it is more straightforward to see s. 488.1 as unconstitutional because it purports to protect this principle but in fact creates a real risk that the principle will be compromised. The proper remedy for this violation of s. 7 is to provide a new procedure. This remedy may be provided judicially through a combination of severance and reading in, or it may ultimately be provided by Parliament. What is important is that any replacement for s. 488.1 recognizes a constitutionalized version of the doctrine of Descoteaux: where documents are seized from a lawyer’s office, there must be a realistic opportunity for a determination of privilege by a judge before the state or any of its agents are able to examine those documents. Anything less would compromise a pillar of the adversary process: solicitor-client privilege.
Keywords: Criminal Code, principles of fundamental justice, Descôteaux, solicitor-client privilege, constitutional law, Canadian Charter of Rights and Freedoms, unreasonable search and seizure
Suggested Citation: Suggested Citation