Definitions
488.1 (1) In this section,
custodian means a person in whose custody a package is placed pursuant to subsection (2); (gardien)
document, for the purposes of this section, has the same meaning as in section 321; (document)
judge means a judge of a superior court of criminal jurisdiction of the province where the seizure was made; (juge)
lawyer means, in the Province of Quebec, an advocate, lawyer or notary and, in any other province, a barrister or solicitor; (avocat)
officer means a peace officer or public officer. (fonctionnaire)
Examination or seizure of certain documents where privilege claimed
(2) Where an officer acting under the authority of this or any other Act of Parliament is about to examine, copy or seize a document in the possession of a lawyer who claims that a named client of his has a solicitor-client privilege in respect of that document, the officer shall, without examining or making copies of the document,
(a) seize the document and place it in a package and suitably seal and identify the package; and
(b) place the package in the custody of the sheriff of the district or county in which the seizure was made or, if there is agreement in writing that a specified person act as custodian, in the custody of that person.
Application to judge
(3) Where a document has been seized and placed in custody under subsection (2), the Attorney General or the client or the lawyer on behalf of the client, may
(a) within fourteen days from the day the document was so placed in custody, apply, on two days notice of motion to all other persons entitled to make application, to a judge for an order
(i) appointing a place and a day, not later than twenty-one days after the date of the order, for the determination of the question whether the document should be disclosed, and
(ii) requiring the custodian to produce the document to the judge at that time and place;
(b) serve a copy of the order on all other persons entitled to make application and on the custodian within six days of the date on which it was made; and
(c) if he has proceeded as authorized by paragraph (b), apply, at the appointed time and place, for an order determining the question.
Disposition of application
(4) On an application under paragraph (3)(c), the judge
(a) may, if the judge considers it necessary to determine the question whether the document should be disclosed, inspect the document;
(b) where the judge is of the opinion that it would materially assist him in deciding whether or not the document is privileged, may allow the Attorney General to inspect the document;
(c) shall allow the Attorney General and the person who objects to the disclosure of the document to make representations; and
(d) shall determine the question summarily and,
(i) if the judge is of the opinion that the document should not be disclosed, ensure that it is repackaged and resealed and order the custodian to deliver the document to the lawyer who claimed the solicitor-client privilege or to the client, or
(ii) if the judge is of the opinion that the document should be disclosed, order the custodian to deliver the document to the officer who seized the document or some other person designated by the Attorney General, subject to such restrictions or conditions as the judge deems appropriate,
and shall, at the same time, deliver concise reasons for the determination in which the nature of the document is described without divulging the details thereof.
Privilege continues
(5) Where the judge determines pursuant to paragraph (4)(d) that a solicitor-client privilege exists in respect of a document, whether or not the judge has, pursuant to paragraph (4)(b), allowed the Attorney General to inspect the document, the document remains privileged and inadmissible as evidence unless the client consents to its admission in evidence or the privilege is otherwise lost.
Order to custodian to deliver
(6) Where a document has been seized and placed in custody under subsection (2) and a judge, on the application of the Attorney General, is satisfied that no application has been made under paragraph (3)(a) or that following such an application no further application has been made under paragraph (3)(c), the judge shall order the custodian to deliver the document to the officer who seized the document or to some other person designated by the Attorney General.
Application to another judge
(7) Where the judge to whom an application has been made under paragraph (3)(c) cannot act or continue to act under this section for any reason, subsequent applications under that paragraph may be made to another judge.
Prohibition
(8) No officer shall examine, make copies of or seize any document without affording a reasonable opportunity for a claim of solicitor-client privilege to be made under subsection (2).
Authority to make copies
(9) At any time while a document is in the custody of a custodian under this section, a judge may, on an ex parteapplication of a person claiming a solicitor-client privilege under this section, authorize that person to examine the document or make a copy of it in the presence of the custodian or the judge, but any such authorization shall contain provisions to ensure that the document is repackaged and that the package is resealed without alteration or damage.
Hearing in private
(10) An application under paragraph (3)(c) shall be heard in private.
Exception
(11) This section does not apply in circumstances where a claim of solicitor-client privilege may be made under the Income Tax Act or under the Proceeds of Crime (Money Laundering) and Terrorist Financing Act.
Annotations
- Part XV