Protection Of Legal Privilege And Seizure Of Electronic Data

Every day in Canada, police forces, the CRA, and other investigative agencies seize huge amounts of data in the course of their investigations. Rather than narrowly focusing on gathering documents relevant to their investigation, they routinely seize entire computer hard drives or entire servers. This systemic approach has a number of troubling aspects to it. The focus of this article, however, is on the ability of our judicial system to uphold the protections guaranteed by legal privilege that are in jeopardy due to systemic over-seizure.

Released in 2019, the British Columbia Supreme Court (the "BCSC") decision Solicitor-Client Privilege of Things Seized (Re), 2019 BCSC 91,1 considered appropriate measures for handling seized electronic files that included privileged communications. The decision provides a practical review of solicitor-client privilege and the safe handling of potentially privileged materials seized by the state. At a high level, the decision reminds us that solicitor-client privilege is as close to an absolute right as exists in law and that any handling of seized data must be strictly managed to minimally impair the right. In this case the CRA's plan for identifying, isolating and storing privileged documents was rejected and counsel for the unnamed respondents (from whose residence and business premises the CRA seized materials) was charged with identifying privileged documents; an independent computer technician was to be appointed to isolate those documents from the producible documents; and the CRA was required to delete all materials from its servers, with the originals being returned to the respondents and a copy deposited with the Court.

The BCSC framed the issue as follows:

What persons and procedures should the Court order for the identification, isolation, and storage of solicitor-client privilege materials, so that privilege is "minimally impaired" and remains "as absolute as possible"?

Lavallee2 is one of the leading decisions of the Supreme Court of Canada ("SCC") on protecting solicitor-client privileged materials. Lavallee principles are relevant in solicitor-client privilege cases, although whether they are constitutionally required depends on the case: strict application is not necessarily required and different processes may be engaged to protect privilege depending on context. The SCC stated in Lavallee that solicitor-client privilege must remain "as close to absolute as possible" and at paragraph 49 that:

... Solicitor-client privilege is a rule of evidence, an important civil and legal right and a principle of fundamental justice in Canadian law. While the public has an interest in effective criminal investigation, it has no less an interest in maintaining the integrity of the solicitor-client relationship. Confidential communications to a lawyer represent an important exercise of the right to privacy, and they are central to the administration of justice in an adversarial system. Unjustified, or even accidental infringements of the privilege erode the public's confidence in the fairness of the criminal justice system. This is why all efforts must be made to protect such confidences.

However, the guidelines apply based on the facts of a case, and Lavallee requires a principled rather than cookie-cutter approach. Also at paragraph 49 of Lavallee, the SCC wrote:

... guidelines are meant to reflect the present-day constitutional imperatives for the protection of solicitor-client privilege, and to govern both the search authorization process and the general manner in which the search must be carried out; in this connection, however, they are not intended to select any particular procedural method of meeting these standards.

Lavallee set out ten guidelines to protect privilege when law offices are the subject of a search warrant:

No search warrant can be issued with regard to documents that are known to be protected by solicitor-client privilege. Before searching a law office, the investigative authorities must satisfy the issuing justice that there exists no other reasonable alternative to the search. When allowing a law office to be...