Maranda v. Richer

Maranda v. Richer
Collection
Supreme Court Judgments
Date
2003-11-14
Neutral citation
2003 SCC 67
Report
[2003] 3 SCR 193
Case number
28964
Judges
McLachlin, Beverley; Gonthier, Charles Doherty; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis; Deschamps, Marie
On appeal from
Quebec
Subjects
Criminal law
Notes
SCC Case Information: 28964
Decision Content
Maranda v. Richer, [2003] 3 S.C.R. 193, 2003 SCC 67
Léo‑René Maranda Appellant
v.
Corporal Normand Leblanc, in his capacity as informant Respondent
and
The Attorney General of Quebec, theCanadian 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,
Association québécoise des avocats et avocates de la défense and
Association des avocats de la défense de Montréal Mis en cause
Indexed as: Maranda v. Richer
Neutral citation: 2003 SCC 67.
File No.: 28964.
2003: May 12; 2003: November 14.
Present: McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps JJ.
on appeal from the court of appeal for quebec
Criminal law — Search warrant — Lawyers’ office — Solicitor-client privilege — Procedure for authorizing and executing searches in lawyers’ offices — Scope of protection afforded by solicitor-client privilege — Documents seized by police in lawyers’ office pursuant to warrant — Information sought by police limited to gross amount of fees and disbursements billed by lawyer to client — Whether amount of fees and disbursements paid by client to lawyer is protected by solicitor-client privilege — Whether search and seizure were unreasonable.
Suspecting that C was involved in money laundering and drug trafficking, the RCMP obtained authorization to search the appellant’s law office for any documents relating to fees and disbursements billed to C or relating to the ownership of an automobile that C had allegedly transferred to his lawyer in payment for professional services. No notice was given to the appellant but a representative of the Syndic of the Barreau du Québec went with the police when they conducted the search, which lasted thirteen and a half hours. The appellant brought an application for certiorari in the Superior Court to have the warrant quashed and the search declared to be unlawful and unreasonable. An application was also filed under s. 488.1 of the Criminal Code . Although the Crown conceded that the search was void, the trial judge decided to continue hearing the case given the importance of the issues. He allowed the application for certiorari and quashed the search warrant and the procedures that had been carried out under it, declaring them to have been unlawful and unreasonable. The Court of Appeal reversed that decision. In the time since the Court of Appeal’s judgment, this Court has declared s. 488.1 to be unconstitutional.
Held: The appeal should be allowed.
Per McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.: The search and seizure were unreasonable and abusive within the meaning of s. 8 of the Canadian Charter of Rights and Freedoms because of the breach of the duty to minimize and the failure to contact the lawyer. The duty to minimize requires, first, that a search not be authorized unless there is no other reasonable solution and, second, that the authorization 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. In this case the application for authorization 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 trial judge found that the evidence showed that the Crown could have obtained at least half of the information sought from different sources. A search and seizure procedure for the purpose of acquiring information half of which could have been obtained in another manner would not be tolerable. Nor does executing the search during business hours and making off with a large quantity of documents comply with the principle of minimization, given the nature of the information sought. Finally, no notice was given to the appellant. There is nothing in the application for authorization to indicate why such contact should not or could not have taken place.
An application for information concerning defence counsel’s fees in connection with a criminal prosecution involves the fundamental values of criminal law and procedure, such as the accused’s right to silence and the protection against self-incrimination. The preservation of those values leads to the conclusion that no distinction should be drawn between a fact and a communication in determining whether the solicitor-client privilege applies to lawyers’ billings for fees and disbursements. The existence of the fact consisting of the bill of account and its payment arises out of the solicitor-client relationship and of what transpires within it. That fact is connected to that relationship and must be regarded, as a general rule, as one of its elements. The fact consisting of the amount of the fees must therefore be regarded, in itself, as information that is generally protected by solicitor-client privilege. While that presumption does not create a new category of privileged information, it will provide necessary guidance concerning the methods by which effect is given to 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 the solicitor-client privilege are achieved and helps keep impairments of solicitor-client privilege to a minimum. In this case, the Crown neither alleged nor proved that disclosure of the amount of the appellant’s billings would not violate the privilege that protected his professional relationship with his client and that information therefore had to remain confidential.
The Court of Appeal should not have applied the crime exception since it was not alleged by the informant and was not argued by the Crown at trial. It is not possible to find information that would justify applying that exception in the affidavit submitted in support of the application for warrant authorization.
Per Deschamps J.: There was agreement with the conclusions of the majority regarding the deficiency of the information and regarding the crime exception. However, it is preferable not to characterize the amount of the fees paid by a client as a matter protected by solicitor-client privilege. The ultimate purpose of this privilege is to enable every individual to exercise his or her rights in an informed manner. The protection extends to advice given in both criminal and civil cases, without distinction. Not all communications with a lawyer will be protected by privilege. It is the context in which the communication takes place that justifies characterizing it as privileged. In order to ensure that solicitor-client privilege continues to serve its purpose, the amount of the fees billed should not be protected unless, due to context, it is found to fall within the ambit of the privilege. Here, the amount of the fees and disbursements is relevant for the purpose of proving the charge of possession of the proceeds of crime or money laundering, but it does not provide any indication as to the nature of the legal advice given, and is not likely to draw a court into an examination of the advice given or the professional services performed by the lawyer. In a context in which the information discloses nothing, there is no reason to justify finding that the information is of as much importance as the legal advice itself. When a lawyer submits a bill of account, he or she does so as a supplier of a service. The lawyer’s relationship with the client is one of creditor to debtor. The amount owing takes on an identity distinct from the service itself. Therefore, it is not appropriate to grant it the same sort of protection given to the legal advice. It is in the interests of the administration of justice and of society in general for there to be greater transparency in respect of the amount of the fees that lawyers charge their clients.
The appeal is therefore allowed for the sole reason that the issuing judge should not have issued the search warrant without imposing conditions to ensure that the intrusion inherent in the search was minimized.
Cases Cited
By LeBel J.
Applied: Lavallee, Rackel & Heintz v. Canada (Attorney General), [2002] 3 S.C.R. 209, 2002 SCC 61; Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860; distinguished: Kruger Inc. v. Kruco Inc., [1988] R.J.Q. 2323; referred to: Solosky v. The Queen, [1980] 1 S.C.R. 821; R. v. Gruenke, [1991] 3 S.C.R. 263; R. v. McClure, [2001] 1 S.C.R. 445, 2001 SCC 14; R. v. Brown, [2002] 2 S.C.R. 185, 2002 SCC 32; R. v. Araujo, [2000] 2 S.C.R. 992, 2000 SCC 65; Rieger v. Burgess, [1989] S.J. No. 240 (QL); R. v. Joubert (1992), 69 C.C.C. (3d) 553; Stevens v. Canada (Prime Minister), [1998] 4 F.C. 89; Hodgkinson v. Simms (1988), 55 D.L.R. (4th) 577; Madge v. Thunder Bay (City) (1990), 72 O.R. (2d) 41; Municipal Insurance Assn. of British Columbia v. British Columbia (Information and Privacy Commissioner) (1996), 143 D.L.R. (4th) 134; Re Ontario Securities Commission and Greymac Credit Corp. (1983), 41 O.R. (2d) 328; Amadzadegan-Shamirzadi v. Polak, [1991] R.J.Q. 1839.
By Deschamps J.
Applied: Solosky v. The Queen, [1980] 1 S.C.R. 821; Lavallee, Rackel & Heintz v. Canada (Attorney General), [2002] 3 S.C.R. 209, 2002 SCC 61; referred to: R. v. Campbell, [1999] 1 S.C.R. 565; Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860; R. v. McClure, [2001] 1 S.C.R. 445, 2001 SCC 14; R. v. Brown, [2002] 2 S.C.R. 185, 2002 SCC 32; R. v. Gruenke, [1991] 3 S.C.R. 263; Québec (Procureur général) v. R.C., [2003] R.J.Q. 2027.
Statutes and Regulations Cited
Act respecting the Barreau du Québec, R.S.Q., c. B-1, s. 75.
By-law respecting accounting and trust accounts of advocates, R.R.Q. 1981, c. B-1, r. 3.
Canadian Charter of Rights and Freedoms, s. 8 .
Code of ethics of advocates, R.R.Q. 1981, c. B-1, r. 1, ss. 3.03.03, 3.08.01, 3.08.02, 3.08.05.
Criminal Code, R.S.C. 1985, c. C-46, ss. 462.31 , 488.1 , 488.1(2) , (8) .
Narcotic Control Act, R.S.C. 1985, c. N-1, ss. 19.1, 19.2.
Regulation respecting the conciliation and arbitration procedure for the accounts of advocates, (1994) 126 O.G. II, 4691.
Authors Cited
Sopinka, John, Sidney N. Lederman and Alan W. Bryant. The Law of Evidence in Canada, 2nd ed. Toronto: Butterworths, 1999.
APPEAL from a judgment of the Quebec Court of Appeal, [2001] R.J.Q. 2490 (sub nom. Leblanc v. Maranda), 47 C.R. (5th) 162 (sub nom. Maranda v. Québec (Juge de la Cour du Québec)), 161 C.C.C. (3d) 64 (sub nom. R. v. Charron), [2001] Q.J. No. 4826 (QL) (sub nom. Maranda v. Canada (Gendarmerie royale)), reversing a decision of the Superior Court, [1998] R.J.Q. 481, [1997] Q.J. No. 3730 (QL). Appeal allowed.
Giuseppe Battista, for the appellant.
Bernard Laprade and Bernard Mandeville, for the respondent.
Gilles Laporte and Benoît Lauzon, for the intervener the Attorney General of Quebec.
Denis Jacques, for the intervener the Canadian Bar Association.
Louis Belleau, for the intervener Barreau du Québec.
Jean‑Claude Hébert, for the intervener the Federation of Law Societies of Canada.
English version of the judgment of McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ. delivered by
LeBel J. —
I. Introduction
1 This appeal arises out of an improperly authorized and improperly executed search conducted in the office of a Montreal criminal lawyer, the appellant, Léo-René Maranda (“Mr. Maranda”), on September 11, 1996. Although the Crown conceded, after an application for certiorari was filed, that the search was void by reason of a serious defect in the affidavit filed in support of the application for authorization, the matter proceeded, largely at the instance of the trial judge. Following the judgments of the Superior Court ([1998] R.J.Q. 481) and the Quebec Court of Appeal ([2001] R.J.Q. 2490), there are three issues now remaining in the appeal to this Court. The first concerns the requirements governing the issuance and execution of warrants to search lawyers’ offices, particularly as they relate to the duty to minimize any violation of solicitor-client privilege, to establish that there are no other sources of information and to give the lawyer in question notice of the procedure to be carried out. The second issue is whether the information in lawyers’ billings is privileged. The third involves the application of what is called the “crime exception”, which was raised by the Quebec Court of Appeal on its own motion.
2 To dispose of these issues, we must examine how the common law rules as they were set out by this Court in Lavallee, Rackel & Heintz v. Canada (Attorney General), [2002] 3 S.C.R. 209, 2002 SCC 61, after it declared s. 488.1 of the Criminal Code, R.S.C. 1985, c. C-46 (“Cr. C.”), to be unconstitutional, have been applied and developed. For the reasons that follow, I would allow the appeal and set aside the appeal decision. Like the trial judge, I find that the common law rules that must govern authorizations to seize materials from lawyers’ offices, and the execution of those authorizations, were violated. As well, in my opinion, the lawyers’ billings must be deemed, in the context in which this case arose, to fall within the category of information protected by solicitor-client privilege. It also seems to me that the crime exception was not properly relied on by the Court of Appeal and does not apply in this case.
II. Origin and Judicial History of the Case
3 In September 1996, the Royal Canadian Mounted Police (“RCMP”) was conducting an investigation of Alain Charron, a client of Maranda. The police suspected that Mr. Charron was involved in money laundering and drug trafficking. In the course of the criminal investigation, the respondent, Cpl. Normand Leblanc, a member of the RCMP, filed an application for authorization to search Mr. Maranda’s office. The application covered all documents relating to fees and disbursements billed to or paid by Mr. Charron. It also covered all documents relating to the ownership of a Bentley automobile that Mr. Charron had transferred to his lawyer, in payment for certain accounts for professional services, according to the police.
4 The affidavit sworn by Cpl. Leblanc in support of the application for authorization stated that the search would lead to the discovery of information relating to the commission by Mr. Charron of the offence of possession of the proceeds of crime, contrary to ss. 19.1 and 19.2 of the Narcotic Control Act, R.S.C. 1985, c. N-1, then in force. The affidavit contained no allegation that Mr. Maranda had participated in the offences with which his client was charged.
5 Once the authorization was granted, the search took place. The police gave Mr. Maranda no notice. However, they alerted the Syndic of the Barreau du Québec, and a representative of the Syndic went with the police when they attended at Mr. Maranda’s office to conduct the search. The search took place during normal office hours. It lasted thirteen and a half hours. Mr. Maranda, who had been detained in court, returned to his office right in the middle of this, to find his files and accounting records being carted off. In accordance with the representations made by Mr. Maranda and the practice in such cases that had been agreed to with the Syndic of the Barreau, the police did not read any of the documents. Nonetheless, filing cabinets and bookshelves were emptied. A number of boxes of documents were left behind, under guard. The appellant and others affected by the search warrant then brought an application for certiorari in the Quebec Superior Court to have the warrant quashed and the search declared to be unlawful and unreasonable. An application was also filed under s. 488.1 Cr. C. The parties agreed to proceed first with the hearing of the application for certiorari, in which a number of parties, including the Barreau du Québec, intervened.
6 After several days of testimony and argument before Béliveau J. of the Superior Court, there was a dramatic turn of events. Counsel for the federal Crown informed the trial judge and counsel for the other parties that after reviewing the entire case, the Crown had decided not to lay any charges against Mr. Charron, Mr. Maranda’s client, in connection with money laundering and possession of the proceeds of crime, the matters that the search had related to. Counsel also admitted that a statement concerning the sources referred to in the affidavit filed in support of the application for authorization to search might have misled the authorizing judge. In the circumstances, since the search had been improper and was of no future use, the Crown stated that it wished to return the property that had been seized, which it ultimately did. The question then arose of whether a case should continue when it had become moot, given that the files and documents seized were being returned to Mr. Maranda.
7 Notwithstanding the admission by counsel for the Crown that the search was invalid and void, and despite the Crown’s objections, Béliveau J. decided to continue hearing the case, noting the importance of the issues it raised in relation to the procedure for authorizing and executing searches in lawyers’ offices, and the scope of the protection afforded by solicitor-client privilege, for future cases. The trial judge then allowed the application for certiorari. He accordingly quashed the search warrant and the procedures that had been carried out under the authority of that warrant, declaring them to have been unlawful and unreasonable. In his opinion, even after s. 488.1 Cr. C. came into force, certain common law principles concerning searches in lawyers’ offices identified by the courts were still valid and had been violated in this case. First, 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, Béliveau J. stated that solicitor-client privilege, as defined by the common law rules that apply in criminal law, covers 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 trial judge concluded that the authorizing judge must, at this stage, try to minimize any violations of privilege and of the confidentiality of the information covered by it. The fact that there was no minimization clause could make the search unreasonable. The judge pointed out that in this case, merely inspecting the lawyer’s accounting records would have been sufficient to achieve the objectives of this search.
8 The Court of Appeal decided to hear the respondent’s appeal despite the fact it was moot. However, it expressed strong reservations regarding the wisdom of the decision to give judgment despite the fact that the proceedings in connection with the search had been abandoned and the property seized returned to Mr. Maranda. Given the serious consequences of the Superior Court’s judgment, however, the court thought it necessary to hear the appeal and examine the legal issues that had been raised at trial. On the merits, the unanimous opinion of the Court of Appeal, written by Proulx J.A., was in almost complete disagreement with the decision of Béliveau J. First, Proulx J.A. expressed the view that the authorizing judge had not lost jurisdiction as a result of a breach of the duty to satisfy himself that there was no alternative. Although he agreed with the finding of fact made by Béliveau J. that the prosecution could have obtained at least half of the information it wanted from other sources, he noted that, on the other hand, the other half could not have been obtained by other means. Accordingly, the authorizing judge had exercised his jurisdiction properly and retained jurisdiction. Proulx J.A. then added that the fact that the issuing judge had not required either that notice be given to the lawyer in question or that the lawyer be present during the search did not invalidate the warrant. Such conditions went beyond what is required by s. 488.1(2) and (8) Cr. C. The presence of the Syndic, which had been required by the judge, provided protection that went beyond what was required by the law itself.
9 Proulx J.A. also examined the question of solicitor-client privilege. In that regard, he distinguished between facts and communications in the relationship between a client and his or her lawyer. In his opinion, the gross amount of fees and disbursements, without any further information or details, is a mere fact. It exists independently of the communication that is the real subject matter of the solicitor‑client relationship. Accordingly, the fact must be examined in the context of that communication, in order to determine whether the circumstances indicate that the information relating to that fact will involve a breach of the privilege. Proulx J.A. also, on his own motion, raised the question of the crime exception to solicitor-client privilege. In his view, the allegations made by the informant in his affidavit provided a basis for applying that exception. Accordingly, the Court of Appeal concluded that the authorizing judge had retained jurisdiction, even though he had not imposed a minimization clause or required that notice be given to the lawyer or that the lawyer be present. In addition, the information about the amount of the fees and disbursements was not privileged. The judgment also criticized Béliveau J. for not applying the crime exception. This Court then granted leave to bring an appeal raising these issues, but within a legal framework that has been altered by recent developments in the Court’s constitutional decisions.
III. The Legal Context of the Appeal
10 The legal context in which this appeal must be examined has changed substantially. When the case began, the principles and rules that applied to searches and seizures in lawyers’ offices were set out in s. 488.1 Cr. C. and in the common law, the relevant substance of which this Court had defined in Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860, in particular. In the time since the Court of Appeal’s judgment, this Court has declared s. 488.1 to be constitutionally invalid, in Lavallee, Rackel & Heintz, supra. It was of the opinion that the section violated s. 8 of the Canadian Charter of Rights and Freedoms by authorizing abusive and unreasonable searches and seizures in lawyers’ offices. In this Court’s opinion, the procedures prescribed by s. 488.1 Cr. C. were likely to jeopardize the privileged nature of solicitor-client communications. This Court’s decision then clarified and strengthened the common law rules described in Mierzwinski. As defined in the reasons for judgment of Arbour J., those common law rules are meant to consolidate solicitor-client privilege, by placing the Crown under a clear duty to minimize any impairments of that privilege that might arise out of the search and seizure procedure. The rules are also intended to facilitate intervention by the lawyer concerned, by requiring that he or she be notified in time to be able to invoke the solicitor-client privilege in the information covered by the search warrant effectively:
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.
(Lavallee, Rackel & Heintz, supra, at para. 49)
11 Obviously, neither the trial judge nor the Court of Appeal was able to examine the issues in this case in the specific context of those modified common law rules. However, the changes made to the common law by the decision in Lavallee, Rackel & Heintz did not totally rewrite the legal rules that apply to searches and seizures of lawyers’ offices. They clarify and consolidate the previous rules, which recognized the need for solid protection of solicitor-client privilege. Those changes were consistent with the line of decisions rendered by this Court since Solosky v. The Queen, [1980] 1 S.C.R. 821, which stressed the social importance of that privilege, whose purpose is to protect the confidentiality of communications between solicitor and client (R. v. Gruenke, [1991] 3 S.C.R. 263, at p. 289). In fact, solicitor-client privilege is one of the rare class privileges recognized by the common law. The decisions of this Court have clearly distinguished that privilege from privileges that are recognized on an individual, case-by-case basis for legal policy reasons, under the Wigmore test (J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at pp. 713-15; Gruenke, at pp. 286-87).
12 The decisions of this Court have consistently strengthened solicitor-client privilege, which it now refuses to regard as merely an evidentiary or procedural rule, and considers rather to be a general principle of substantive law (see Lavallee, Rackel & Heintz, at para. 49). The only exceptions to the principle of confidentiality established by that privilege that will be tolerated, in the criminal law context, are limited, clearly defined and strictly controlled (R. v. McClure, [2001] 1 S.C.R. 445, 2001 SCC 14; R. v. Brown, [2002] 2 S.C.R. 185, 2002 SCC 32). The aim in those decisions was to avoid lawyers becoming, even involuntarily, a resource to be used in the criminal prosecution of their clients, thus jeopardizing the constitutional protection against self-incrimination enjoyed by the clients. In determining the propriety of the authorization and execution of the search in Mr. Maranda’s office and examining the problem of the confidentiality of the information about the fees and disbursements billed to his clients, care must be taken to follow the general approach that can be seen in this Court’s decisions in this area.
IV. Analysis
13 In this appeal, the Court must answer questions that are now moot, since in any event the Crown concedes that the search and seizure were void and unreasonable. The Court of Appeal’s negative responses to the arguments made by the appellant in respect of those questions could not revive that procedure. However, because of the nature of the proceedings that have taken place and their possible consequences, the questions have been asked and this Court has agreed to examine and answer them, as I shall now do.
1. The Duty to Minimize
14 The first problem that arises is the question of the existence and effect, in Canadian criminal law, of a duty to minimize impairments of solicitor-client privilege when a search in a lawyer’s office is authorized and executed. Under the current law, as set out in the decisions of this Court, there is no doubt that such a duty exists. It rests on the informant who applies for a search warrant, the authorizing judge and those responsible for executing it.
15 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. Those principles had been laid down by Lamer J. (as he then was) in Mierzwinski, at p. 893:
Before authorizing a search of a lawyer’s office for evidence of a crime, the justice of the peace should refuse to issue the warrant unless he is satisfied that there is no reasonable alternative to the search, or he will be exceeding his jurisdiction (the substantive rule). When issuing the warrant, to search for evidence or other things, he must in any event attach terms of execution to the warrant designed to protect the right to confidentiality of the lawyer’s clients as much as possible.
16 In the recent decision in Lavallee, Rackel & Heintz, Arbour J. reiterated the need for stringent application of these rules. The requirement that there be no reasonable alternative must be met. The procedure to be followed must then be designed to ensure that the search will be executed so as to minimally impair solicitor‑client privilege (para. 20). Later in her reasons, Arbour J. again stressed the importance of adopting a procedure that will rigorously protect the privilege, and of the more general principle of minimization (at para. 36):
Indeed, solicitor‑client privilege must remain as close to absolute as possible if it is to retain relevance. Accordingly, this Court is compelled in my view to adopt stringent norms to ensure its protection. Such protection is ensured by labeling as unreasonable any legislative provision that interferes with solicitor‑client privilege more than is absolutely necessary.
17 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. On that point, the principles laid down by this Court in R. v. Araujo, [2000] 2 S.C.R. 992, 2000 SCC 65, concerning wiretapping cases, in which a principle requiring that violations of privacy be minimized applies, appear to be relevant here. As noted in that decision, while those affidavits should not be pointlessly prolix, they must provide the authorizing judge with full and frank information, which the judge can use to perform his or her function completely (see Araujo, at paras. 46-47). It is then up to the judge to exercise his or her jurisdiction carefully, to ensure that the application for authorization properly establishes that there are no reasonable alternatives, and to define a procedure to be followed in executing the search that will preserve solicitor-client privilege to the greatest possible extent. This is not a matter of fulfilling formalities or laying out boilerplate allegations. Where privilege could be breached, it must be shown to the judge’s satisfaction that the duty to minimize can be met in carrying out the proposed procedure.
18 In these respects, the application for authorization did not comply with the duty to minimize. It was neither alleged nor established, at that stage, that there was no other reasonable alternative, that the information sought could not be obtained using other sources. In this regard, Béliveau J. found that the evidence showed that the Crown could have obtained at least half of the information sought from different sources. Neither the Court of Appeal nor the Crown has disputed that finding of fact.
19 A procedure in which a relatively minimal amount of information that could have been gathered by other means was obtained from the lawyer would undoubtedly be tolerable. 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, when it was claimed that only information about fees and disbursements paid to Mr. Maranda, and certain information about the transfer of an automobile, was being sought. The failure to make any attempt to contact the lawyer in question ahead of time exacerbated the violation.
20 In Lavallee, Rackel & Heintz, as noted earlier, the Court cited the need for a lawyer who is to be the subject of a search and seizure to be contacted. As useful as it may seem to contact the law society and to have its representative present, there is still a duty to inform the lawyer and the persons concerned, for the purpose of ensuring that solicitor-client privilege is effectively protected. Because that rule exists, the application for authorization and the authorization itself must provide for a method of informing the lawyer to alert him or her to the operation it is proposed to conduct in his or her office. However, circumstances may arise where that information would jeopardize the criminal investigation that is underway and the proposed seizure. In such a case, it will 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 to which the lawyer belongs will then have to be informed in a timely manner, so that its representative can be present at the search and take the necessary steps to avoid any breach of solicitor-client privilege. In this case, no notice was given to Mr. Maranda. There is nothing in the application for authorization to indicate why such contact should not or could not have taken place. As Béliveau J. concluded, that defect affected the validity of the procedure by which the search was authorized and the execution of the search. It contributed to making the operation abusive and unreasonable within the meaning of s. 8 of the Charter .
2. The Privileged Nature of Information About Lawyers’ Fees and Disbursements
21 This case generated a debate about the privileged nature of lawyers’ billings for fees and disbursements. In the eyes of the parties, and of the Superior Court and the Court of Appeal, that question seems to have become the main subject of the legal proceedings that arose out of this case. It must be discussed in the context of the very first of the common law rules set out by Arbour J. in Lavallee, Rackel & Heintz, supra, at para. 49. That rule prohibits the issuance of any search warrant relating to privileged information:
1. No search warrant can be issued with regards to documents that are known to be protected by solicitor‑client privilege.
22 At first glance, that rule is clear and stringent. The authorizing judge may not issue a search warrant for privileged documents unless the material submitted to the judge by the informant establishes that an exception to that privilege applies. In that case, the warrant applied for may be granted, on terms that seek to keep breaches of privilege to a minimum. In this appeal, we must determine how that rule applies to information concerning lawyers’ fees, in the context of a criminal investigation being conducted by the police. However, the parties are not questioning the principles set out in Mierzwinski, holding that lawyers’ billings are protected by privilege when they contain information regarding the content of communications between the lawyer and his or her client, both about the legal advice given and about the terms for payment of the lawyer’s fees or the financial situation of the person who consults the lawyer (p. 877, per Lamer J.). In the Court’s opinion, the scope of the privilege is broad. The reasons written by Lamer J. suggest that courts should exercise great caution before trying to circumscribe or create exceptions to that privilege (at pp. 892-93):
In summary, a lawyer’s client is entitled to have all communications made with a view to obtaining legal advice kept confidential. Whether communications are made to the lawyer himself or to employees, and whether they deal with matters of an administrative nature such as financial means or with the actual nature of the legal problem, all information which a person must provide in order to obtain legal advice and which is given in confidence for that purpose enjoys the privileges attached to confidentiality. This confidentiality attaches to all communications made within the framework of the solicitor-client relationship, which arises as soon as the potential client takes the first steps, and consequently even before the formal retainer is established.
23 In this appeal, however, the Attorney General of Canada, whose arguments on this point were adopted by the Quebec Court of Appeal, submits that the application related only to neutral information, the amount of the fees and disbursements paid, and to no other details. That information, it is submitted, falls outside the scope of the solicitor-client communication that is protected by common law privilege. The Attorney General compares it to a pure fact which is not such as would inform third parties about the content of the solicitor-client communication. That information would not facilitate the enlisting of the lawyer against his or her client, thus violating the client’s constitutional protection against self-incrimination. The ultimate thrust of that argument is that this information could be the subject of a search warrant and could be disclosed to the prosecution, unless the context established that disclosing it might violate the confidentiality of the content of the professional communication. The appellant replies that this information is deemed to be covered by privilege. It cannot be the subject of a search warrant, and the lawyer could not disclose it to the Crown.
24 The question has never before been submitted to this Court in these terms. To answer it, I will have to assume that the Crown is seeking only the raw data, the amount of the fees and disbursements. I have some doubts on that point, however, after reading the list of documents sought. The documents and information sought, in particular concerning Mr. Maranda’s disbursement accounts, might enable an intelligent investigator to reconstruct some of the client’s comings and goings, and to assemble evidence concerning his presence at various locations based on the documentation relating to his meetings with his lawyer. In any event, I shall examine the issue in the terms defined by the parties, who assume that the information that the RCMP wanted was limited to the gross amount of the fees and disbursements billed by Mr. Maranda to his client, Mr. Charron.
25 The Canadian courts seem to have been divided on the question. The Court of Appeal has adopted an approach under which access to the information would be permitted as a general rule, unless the context showed that disclosing it would violate privilege. In the court’s view, the privilege attaches to the communication, and not to a fact that might arise out of that communication. Proulx J.A. explained his understanding of the nature and scope of the privilege as follows (at para. 54):
[translation] . . . solicitor-client “privilege” confers protection against any disclosure by