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 the client or the lawyer of (1) communications by the client, (2) for the purpose of obtaining legal advice, (3) in the course of the solicitor-client relationship, and (4) intended by the client to be confidential. Where those four elements are all present, a communication may be described as “privileged”. [Emphasis in original.]
26 The Court of Appeal’s reasons place great weight on the distinction between a fact and a communication in determining whether the common law privilege applies. If that privilege is to attach, there must have been not only confidentiality, but also a communication. Although the payment of fees, as a fact, is incidental to the solicitor-client relationship, it is separate from all of the privileged elements of the communication. In any event, in Proulx J.A.’s opinion, even if the payment of fees is regarded as an element of an act of communication, the content of that communication would not found a claim to privilege, because that content would not jeopardize the essential purpose of the privilege, which is to protect the trust and freedom that must be the hallmark of communications between solicitor and client (at para. 95):
[translation] . . . disclosure of the fees paid cannot jeopardize the purpose of the privilege. In other words, I believe that a client who knows that the amount of the fees he or she will pay could be disclosed is still not prevented from freely confiding in his or her lawyer for the purpose of the client’s defence, or denied the assurance of confidentiality.
27 There is a line of cases that supports the position taken by the Quebec Court of Appeal. While those cases sometimes cite the distinction between fact and communication, they would, as a general rule, refuse to recognize solicitor-client privilege as attaching to information about the gross amount of fees paid to a lawyer (see, for example: Rieger v. Burgess, [1989] S.J. No. 240 (QL) (Q.B.); R. v. Joubert (1992), 69 C.C.C. (3d) 553 (B.C.C.A.)). The Court of Appeal also relied on a decision, in which I wrote the reasons, where it had concluded that solicitor-client privilege, in Quebec law, did not protect the information contained in billings that did not contain any details concerning the nature of the services rendered (Kruger Inc. v. Kruco Inc., [1988] R.J.Q. 2323 (C.A.)). Other judgments have taken a position in favour of applying privilege in those circumstances. The most important of those judgments is undoubtedly the decision of the Federal Court of Appeal in Stevens v. Canada (Prime Minister), [1998] 4 F.C. 89. In that case, although it dealt with the problem of applying federal access to information legislation, Linden J.A. had concluded that the amount of fees fell within the framework of the solicitor-client relationship and had to be protected (paras. 29-30). His reasons stressed the importance of the information that able counsel could sometimes extract from apparently neutral information such as the mere amount of the fees paid by opposing counsel’s client (para. 46) (see also, for example: Hodgkinson v. Simms (1988), 55 D.L.R. (4th) 577 (B.C.C.A.); Madge v. Thunder Bay (City) (1990), 72 O.R. (2d) 41 (S.C.); Municipal Insurance Assn. of British Columbia v. British Columbia (Information and Privacy Commissioner) (1996), 143 D.L.R. (4th) 134 (B.C.S.C.), at paras. 47-49).
28 The problem here must be solved in a way that is consistent with the general approach adopted in the case law to defining the content of solicitor-client privilege and to the need to protect that privilege. In the context of criminal investigations and prosecutions, that solution must respect the fundamental principles of criminal procedure, and in particular the accused’s right to silence and the constitutional protection against self-incrimination.
29 Because this Court is dealing here with a criminal case, we must not overestimate the authority of Kruco or of other judgments that may have been rendered in civil or commercial cases. Kruco, for example, dealt with a completely different, commercial law matter, one that was governed by the law of evidence and the civil procedure of Quebec. It involved a dispute between two groups of shareholders who claimed to be entitled to complete financial information concerning the company’s affairs, including information about the lawyers’ fees that some of them had allegedly arranged to be paid by the company in which they all held an interest. An application by the Crown for information concerning defence counsel’s fees in connection with a criminal prosecution involves the fundamental values and institutions of criminal law and procedure. The rule that is adopted and applied must ensure that those values and institutions are preserved.
30 That rule cannot be based on the distinction between facts and communication. The protection conferred by the privilege covers primarily acts of communication engaged in for the purpose of enabling the client to communicate and obtain the necessary information or advice in relation to his or her conduct, decisions or representation in the courts. The distinction is made in an effort to avoid facts that have an independent existence being inadmissible in evidence (Stevens, supra, at para. 25). It recognizes that not everything that happens in the solicitor-client relationship falls within the ambit of privileged communication, as has been held in cases where it was found that counsel was acting not in that capacity but simply as a conduit for transfers of funds (Re Ontario Securities Commission and Greymac Credit Corp. (1983), 41 O.R. (2d) 328 (Div. Ct.); Joubert, supra).
31 However, the distinction does not justify entirely separating the payment of a lawyer’s bill of account, which is characterized as a fact, from acts of communication, which are regarded as the only real subject of the privilege. Sopinka, Lederman and Bryant, supra, highlighted the fineness of that distinction and the risk of eroding privilege that is inherent in using it (at p. 734, §14.53):
The distinction between “fact” and “communication” is often a difficult one and the courts should be wary of drawing the line too fine lest the privilege be seriously emasculated.
32 While this distinction in respect of lawyers’ fees may be attractive as a matter of pure logic, it is not an accurate reflection of the nature of the relationship in question. As this Court observed in Mierzwinski, there may be widely varying aspects to a professional relationship between solicitor and client. Issues relating to the calculation and payment of fees constitute an important element of that relationship for both parties. The fact that such issues are present frequently necessitates a discussion of the nature of the services and the manner in which they will be performed. The legislation and codes of professional ethics that govern the members of law societies in Canada include often complex mechanisms for defining the obligations and rights of the parties in this respect. The applicable legislation and regulations include strict rules regarding accounting and record-keeping, an obligation to submit detailed accounts to the client, and mechanisms for resolving disputes that arise in that respect (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; Code of ethics of advocates, R.R.Q. 1981, c. B-1, r. 1, ss. 3.03.03 and 3.08.05; Regulation respecting the conciliation and arbitration procedure for the accounts of advocates, (1994) 126 O.G. II, 4691). 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.
33 In law, 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. 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, which, it will be recalled, is a class 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, which this Court forcefully stated even more recently in McClure, supra, at paras. 4-5.
34 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. The judge will have to satisfy himself or herself of this, by a careful examination of the application, subject to any review of his or her decision. In addition, certain information will be available from other sources, such as the client’s bank where it retains the cheques or documents showing payment of the bills of account. As a general rule, however, a lawyer cannot be compelled to provide that information, in an investigation or in evidence against his or her client. In this case, the Crown neither alleged nor proved that disclosure of the amount of Mr. Maranda’s billings would not violate the privilege that protected his professional relationship with Mr. Charron. That information therefore had to remain confidential, as the trial judge held.
3. The Crime Exception
35 The final ground relied on by the Court of Appeal to justify disclosure of the amount of the lawyer’s fees and disbursements in this case was the crime exception. That ground comes as a surprise, and should not have been argued on appeal. The informant had not alleged that exception. The Crown had not argued it in the Superior Court. Contrary to the opinion of the Court of Appeal, it is difficult to find information that would justify applying that exception in the affidavit submitted by the informant in support of the application for authorization. In order to rely on this ground, it would have to be concluded that this exception applies whenever a lawyer is consulted by a client concerning an offence of the same type as the offence contemplated by the provisions of s. 462.31 Cr. C., relating to what are called proceeds of crime. In this case, the affidavit plainly did not claim that Mr. Maranda was connected in any way with the acts it was sought to charge his client with.
36 The courts have recognized the existence of this exception (see Amadzadegan-Shamirzadi v. Polak, [1991] R.J.Q. 1839 (C.A.)). The legal rules governing the exception, both at the stage of an investigative procedure such as a search and at trial, merit careful examination. Such an examination would not be warranted in this case, where all that is needed is to observe that none of the allegations and facts required if it were to be applied were present. Accordingly, on this point as well, the appeal must succeed.
37 Despite the circumstances in which the trial judge decided to retain jurisdiction in this case, his conclusions seem to be in accordance with the general trend in the decisions of this Court. This Court has shown itself to be mindful of the protection that must be afforded to solicitor-client privilege, which plays a fundamental role in the functioning of the criminal justice system. The confidentiality of the solicitor-client relationship is essential to the functioning of the criminal justice system and to the protection of the constitutional rights of accused persons. It is important that lawyers, who are bound by stringent ethical rules, not have their offices turned into archives for the use of the prosecution.
V. Conclusion
38 For these reasons, I would allow the appeal. I would find 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. I would also conclude 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.
English version of the reasons delivered by
39 Deschamps J. — No one is questioning the importance of the privilege that attaches to the solicitor-client relationship. The only issue here is the scope of that privilege. Rather than abstractly considering the whole relationship that may exist between a lawyer and his or her client to be hallowed, I favour a contextual approach. In my view, this approach promotes the due administration of justice, since it protects all communications made by the client to his or her lawyer for the purpose of obtaining legal advice, while not unduly impairing the search for truth. I am therefore of the view that it is preferable not to characterize the amount of the fees paid by a client as a matter protected by solicitor-client privilege. On the question of the rules that apply to the issuance of a warrant, I am of the opinion, like LeBel J., that the information was deficient. I also concur with his conclusions regarding the crime exception.
I. Solicitor-Client Privilege
40 As LeBel J. observes, the issue in this case has never been submitted to the Court, and I think it is important not to lose sight of the objective of 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. The privilege performs the social function of preserving the quality, freedom and confidentiality of information exchanged between a client and his or her lawyer in the context of a legal consultation. It enables all individuals to participate in society with the benefit of the information and advice needed in order to exercise their rights. It is closely associated with access to justice. Accordingly, regardless of the historical origin of the privilege, contemporary imperatives dictate that the same generous approach be taken which led to the recognition of this privilege as a principle of fundamental justice.
41 However, this principle of fundamental justice does not function in the abstract. For one thing, it involves its own limitations; for another, it must be reconciled with numerous other social imperatives, such as public safety and truth-seeking. To date, there have been several cases in which the courts have had an opportunity to examine this privilege. The boundaries of the privilege have not been drawn and, in my opinion, it should not be assigned a watertight definition. While the context in which this case arose is unique in that the appeal is moot, it offers an example of a situation in which no purpose is served by the protection afforded by the privilege. I therefore think that it will be useful to review the internal limitations on the privilege, after which I will discuss the exceptions to it. I will conclude by explaining why, in my opinion, the justice system is better served when neutral information is disclosed instead of concealed.
(a) Scope of the Privilege
42 Not all communications with a lawyer will be protected by privilege. In other words, it is not the capacity in which the person is party to the communication that gives rise to the privilege. It is the context in which the communication takes place that justifies characterizing it as privileged. Accordingly, a commercial lawyer who works in an advertising agency and whose time is spent exclusively on developing products for his or her client will not be able to claim privilege for promotional work done. Similarly, the mere fact that a client considers certain information to be confidential will not suffice for it to be protected by solicitor-client privilege. I mention these examples as a reminder that the three prerequisites for privilege to attach, as laid down by Dickson J. (as he then was) in Solosky v. The Queen, [1980] 1 S.C.R. 821, at p. 837, still apply:
. . . (i) a communication between solicitor and client; (ii) which entails the seeking or giving of legal advice; and (iii) which is intended to be confidential by the parties.
43 What then was the information sought in this case? It is common ground that the sole purpose of the search was to obtain information about the amount of the fees and disbursements paid by Alain Charron to his lawyer, Léo-René Maranda, for representing him at trials held in Nova Scotia and Newfoundland on narcotics charges.
44 In order to afford the broadest possible protection, I will assume that the first and last criteria set out in Solosky are met. The second criterion is more problematic, and a complete answer can only be found by examining the whole context.
45 The information was sought not in connection with the narcotics charges that gave rise to the lawyer’s fees and disbursements, but because an investigation was being conducted into an allegation of money-laundering and possession of the proceeds of crime. The declaration made by Cpl. Normand Leblanc contains the following allegations:
[translation]
20. The foregoing details lead me to believe and establish that Alain CHARRON (DOB: 48-06-08) has for several years been active in the drug world. The lifestyle he has led for several years, and the large sums he has invested in buying the BOURBON, doing renovations and buying expensive vehicles, and his investments on the stock market, cannot be justified by legitimate sources of income. It is obvious that Alain CHARRON (DOB: 48-06-08) has taken considerable precautions to conceal his assets, by using pseudonyms. At present, the only asset in his possession that is registered in his name is a vehicle leased by him, to wit: a white Cadillac Seville 94, licence number WPS630/QC. I believe that the moneys spent by Alain CHARRON (DOB: 48-06-08) and referred to above are profits derived directly from his activities in connection with narcotics trafficking.
21. My preliminary analysis of the monthly expenses incurred by Alain CHARRON (DOB: 48-06-08) and his common-law wife, Diane BUNDOCK, in recent years establishes an average amount of about $5,000.00. That amount does not take into account the expenses referred to in paragraph 17 above. In addition, that amount does not take into account the legal fees incurred by Alain CHARRON (DOB: 48-06-08) since his arrest on 90-07-31 including expenses for travelling to court in Sydney, Halifax and St-John’s and the cost of hotels, telephone calls, meals and vehicle rentals for himself and Léo René MARANDA. I believe that the information concerning the amount of those expenses is needed in order to determine the total amount that Alain CHARRON (DOB: 48-06-08) has spent since 1990. From those details, I will be able to prepare a balance sheet and net assets for Alain CHARRON (DOB: 48-06-08). I believe that the result of that work will serve as evidence in court against Alain CHARRON (DOB: 48-06-08) by establishing CHARRON’s inability to have been in lawful possession of the sums of money spent as described in paragraph 17 above.
22. The information cited above constitutes my reasonable and probable grounds for believing that the documents (see Appendix “A”) exist and are located at the places of business of the hotels and lawyers’ offices referred to above (ref.: paras. 13, 14 & 15). Those documents will serve as evidence to establish the total of the amounts paid by Alain CHARRON (DOB: 48-06-08) to the lawyers referred to above and the amount of his personal expenses, including the expenses of Léo René MARANDA, who would have billed them to CHARRON. That information is needed in order to prepare a balance sheet and net assets for Alain CHARRON (DOB: 48-06-08) in order to establish that his lifestyle and the assets he has acquired exceed his lawful means and are entirely dependent on the profits from his unlawful activities. For these same reasons, I request that a search warrant be granted for the business office of Léo René MARANDA, advocate, located at 31 rue St-Jacques, 1st floor, Montréal QC, H2Y 1K9, and its appurtenances, for the purpose of seizing all documents pertaining to the amounts of the legal fees and other disbursements billed to Alain CHARRON (DOB: 48-06-08) and paid by him. In addition, we are searching for documents such as the contract of sale, transfer of ownership, registration or other documents from which we can confirm the real owner of the Bentley, who, according to our information, is Alain CHARRON. That evidence is required to justify charges under sections 19.1 and 19.2 of the Narcotic Control Act against Alain CHARRON (DOB: 48-06-08) and to justify an application to the court for seizure of the assets acquired by him with the profits from his criminal activities. [Emphasis in original.]
(Sworn statement of Cpl. Normand Leblanc, September 4, 1996 (Appellant’s Record, at pp. 258-59))
46 As can be seen in these allegations, the sole reason for the prosecution’s interest in the fees and disbursements billed by the lawyer is that they show the lifestyle led by Alain Charron, on the same basis as does the information collected in relation to the purchase of the Bourbon Street Club, the renovations to the residences, the purchases of luxury vehicles or the investments on the stock market. Nor are they any more sought after than would be information from another professional or supplier of consumer goods. The amount of the fees and disbursements, in the context of this case, is relevant for the purpose of proving the charge of possession of the proceeds of crime or money laundering, but it discloses nothing having to do with any advice the lawyer may have given his client.
47 The fact that Mr. Maranda represented Mr. Charron is public knowledge. As well, it can be inferred that Mr. Maranda was not acting as a volunteer, but that he was receiving fees for his services and that he was reimbursed for expenses he incurred in carrying out his instructions. Therefore, the only remaining issue is the amount of the fees and disbursements. I do not see how any litigant, even the ablest, could use such facially neutral information as the amount of fees and disbursements to deduce some information concerning the legal advice that a lawyer gave his client. The amount of the fees and disbursements 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.
48 When I describe the amount of the fees and disbursements in this case as neutral, I am not relying on a distinction between fact and communication, because, as pointed out by J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 734, that line can be difficult to draw. Certain facts, if disclosed, can sometimes speak volumes about a communication. In this case, however, the appellant did not argue that the information sought might jeopardize the confidentiality of the legal advice given. He relied solely on a general presumption that the information is privileged because it is part of the solicitor-client relationship.
49 In order to bring the amount of the fees and disbursements within the ambit of professional privilege, it seems to me that some rational connection with the objective of the privilege would have to be identified. As Binnie J. stated in R. v. Campbell, [1999] 1 S.C.R. 565, at para. 50: “It is, of course, not everything done by a . . . lawyer that attracts solicitor‑client privilege. . . . Whether or not solicitor‑client privilege attaches in [a particular situation] depends on the nature of the relationship, the subject matter of the advice and the circumstances in which it is sought and rendered.” In a context such as the one in this case, in which the information discloses nothing, I see 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.
50 LeBel J. proposes (at para. 28) that in the criminal law context, the protection conferred by the privilege might have a different scope, in particular because of the fundamental principles of the criminal law such as the right to silence and the protection against self-incrimination. I cannot accept this distinction. First, while there may be a specific justification for the privilege in criminal law, because of the principles unique to that context, privilege is not to be confused with those principles. It has its own autonomous existence, which transcends the particular field of law in which lawyers may be called upon to give advice.
51 LeBel J. also suggests (at para. 34) that if the Crown believes that the disclosure of the amount of fees does not violate the confidentiality of the relationship, then it must make that allegation in its application for authorization. It seems to me that this simplified mechanism is inconsistent with the protective approach adopted by the Court to date, which allows very little room for exceptions once the privilege is recognized. To date, recognition of the privilege has been seen as giving rise to a presumption juris et de jure and not a presumption juris tantum. This brings me to the question of what are the exceptions to professional privilege.
(b) Exceptions to Privilege
52 When information is recognized as privileged, there are a number of exceptions that allow for the protection to be circumvented. One well known exception is the crime exception: Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860. As noted earlier, I will not discuss this at length because I am of the opinion that the context does not lend itself to a complete analysis of that exception in this case. It was also recognized in Solosky that pressing social needs such as safety and the public interest may justify exceptions to the privilege. As well, R. v. McClure, [2001] 1 S.C.R. 445, 2001 SCC 14, offers another example of an exception: when an accused’s innocence depends on privileged information being admitted in evidence, the court will be justified in authorizing disclosure. In any case, finding these exceptions is not a task to be undertaken lightly: R. v. Brown, [2002] 2 S.C.R. 185, 2002 SCC 32.
53 Therefore, it seems to me that, in order to be true to the importance of solicitor-client privilege, a court should be very wary of diluting the protection of privilege by lowering the threshold for creating exceptions or developing new mechanisms to justify disclosure. The disclosure of the amount of fees and disbursements in this case certainly does not merit such an exceptional departure; indeed, it does not merit the protection of privilege at all.
(c) Judicial Policy Considerations
54 I can imagine that a client might regard the amount of his or her legal fees as private information. However, that possibility does not seem to me to justify the exceptional protection associated with privilege. For instance, the examples given by the trial judge are all situations in which there was a fear of being charged with possession of the proceeds of crime. I disagree with his assertion that disclosure of the fees would interfere with the proper functioning of the judicial system. The examples given overemphasize the confidentiality intended by the parties, the third criterion in the test proposed by Dickson J. in Solosky. Making that criterion the determining factor would amount to protecting all information that a client wishes to be confidential, without regard to any connection between the information and the substance of legal advice, the second criterion, which is the only outstanding issue here. The fees billed by a physician, notary or accountant may strike just as sensitive a chord as the fees billed by a lawyer. Lawyers, themselves, do not exist in a separate category. In R. v. Gruenke, [1991] 3 S.C.R. 263, the Court held that a communication made to a member of the clergy is not necessarily confidential. Similarly, the amount of fees paid to a lawyer is not necessarily privileged. When severed from the details of the services rendered, it is not inextricably bound up with the legal system.
55 In this respect, lawyers cannot expect to be exempt from the trend toward greater transparency in relation to the accounts of professionals and corporate managers. The legal profession has everything to gain from greater transparency, not the least of which would be to enhance public confidence in the justice system and its leading actors. Therefore, 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. It is worth noting that in Quebec, the Code of ethics of advocates, R.R.Q. 1981, c. B-1, r. 1, contains provisions regarding how fees are to be established:
3.08.01. The advocate must charge and accept fair and reasonable fees.
3.08.02. The fees are fair and reasonable if they are warranted by the circumstances and correspond to the services rendered. In determining his fees, the advocate must in particular take the following factors into account:
(a) his experience;
(b) the time devoted to the matter;
(c) the difficulty of the question involved;
(d) the importance of the matter;
(e) the responsibility assumed;
(f) the performance of unusual services or services requiring exceptional competence or celerity;
(g) the result obtained;
(h) the judicial and extrajudicial fees fixed in the tariffs.
56 In a society that is mindful of transparency, a lawyer’s fees should not necessarily be treated as secret information. The manner in which fees are established is regulated and they may be challenged. The gross amount billed on account of fees is not information that is likely, in normal circumstances, to disclose anything about the legal advice given to a client by a lawyer. In some cases, the amount that a lawyer must reasonably receive is considered a matter of public interest: Québec (Procureur général) v. R.C., [2003] R.J.Q. 2027 (C.A.). I therefore believe that 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 professional privilege as defined in Solosky.
57 I must also, again, emphasize my disagreement with the distinction based on the fact that this case involves the criminal law. Making that kind of distinction is dangerous because its effect could be to create a double standard. That double standard is not likely to promote public respect for the criminal justice system. Solicitor-client privilege has been recognized by this Court as a principle of fundamental justice, which applies equally to both civil law and criminal law.
58 Each time the Court has had to decide whether information was protected by privilege, it has looked to the context to see it in relation to the purpose of the privilege. Even in Mierzwinski, in which the Court recognized that financial information supplied for the purpose of obtaining legal advice is privileged, the reasons stated show that protection was granted because of the connection with the legal advice sought. The approach adopted by LeBel J. seems to me to be based on a theoretical presumption that is detached from any contextual foundation.
II. Unreasonableness of the Search
59 In light of recent decisions of the Court, primarily Lavallee, Rackel & Heintz v. Canada (Attorney General), [2002] 3 S.C.R. 209, 2002 SCC 61, I would conclude, like LeBel J., that the issuing judge should have attached conditions to the warrant to ensure that the intrusion inherent in the search was minimized. The facts do not indicate that there was any particular urgency, and there was no allegation made from which it might be believed that the lawyer had participated in the crime. It would have been easy to notify him. His participation would have made it possible to conduct the search with due regard for the premises concerned. The information sought was narrowly focussed and the lawyer was in the best position to direct the search efforts of the officers responsible for executing the warrant.
60 Since an issuing judge has no control over how the search is conducted, the Court cannot reproach the judge here for failing to anticipate that the search would take more than 13 hours. Nor would I rely, as the sole ground for issuing a writ of certiorari, on the argument that 50 percent of the documents could have been obtained by other means. On that point, it must be noted that the documents that could have been located elsewhere are vouchers such as hotel or restaurant bills, while the most important information was undoubtedly the amount of the fees and the total amount of the disbursements, information that could not have been located elsewhere than in the lawyer’s office. Lastly, like Proulx J.A., I would find that the issuing judge had sufficient discretion to be able to authorize the search.
61 To summarize, while I conclude that the appeal must be allowed, the reason is that I am also of the opinion 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.
Appeal allowed.
Solicitors for the appellant: Shadley Battista, Montréal.
Solicitor for the respondent: Attorney General of Canada, Ottawa.
Solicitor for the intervener the Attorney General of Quebec: Department of Justice, Sainte‑Foy.
Solicitors for the intervener the Canadian Bar Association: Grondin Poudrier Bernier, Québec.
Solicitors for the intervener Barreau du Québec: Filteau & Belleau, Montréal.
Solicitors for the intervener the Federation of Law Societies of Canada: Hébert, Bourque & Downs, Montréal.