Descôteaux v. Mierzwinski (1982), 44 N.R. 462 (SCC)
MLB headnote and full text
Descoteaux and Centre Communautaire Juridique de Montreal v. Mierzwinski and Le Procureur general de la Province de Quebec, Commission des services juridiques (intervenants) and Landry, Le Barreau du Quebec, et La Commission des droits de la personne (mis-en-cause)
Indexed As: Descôteaux et Centre Communautaire Juridique de Montréal v. Mierzwinski et al.
Supreme Court of Canada
Martland, Ritchie, Dickson, Beetz, Estey, Chouinard and Lamer, JJ.
June 23, 1982.
Summary:
Quebec peace officers obtained a search warrant to search for and seize documents at a legal aid bureau respecting a man’s application for legal aid in which he allegedly lied about his financial means in order to obtain legal aid, a criminal offence. The legal aid bureau gave up the pertinent documents in a sealed envelope and applied for an order of certiorari to quash the seizure on the ground that it violated the man’s solicitor-client privilege.
The Quebec Superior Court dismissed the application on the ground that there was no solicitor-client privilege, because the application was completed before the solicitor-client relationship began. The bureau appealed.
The Quebec Court of Appeal dismissed the appeal. The bureau appealed.
The Supreme Court of Canada dismissed the appeal after explaining and defining the extent and limitations of the solicitor-client privilege. The court held that, although the solicitor-client privilege arose at the legal aid application state, the privilege did not protect communications which constituted an element of crime. The court referred the matter back to the justice, who issued the search warrant, so that the documents could be examined in light of the court’s directions.
Criminal Law – Topic 3054
Special powers – Search warrants – Execution of – General – The Supreme Court of Canada held that a justice of the peace may direct the manner in which a search warrant is to be executed – See paragraphs 61 to 70.
Criminal Law – Topic 3055
Special powers – Search warrants – Execution of – Law offices – The Supreme Court of Canada set out suggested procedures for the execution of search warrants in law offices, particularly where solicitor-client privilege is involved – See paragraphs 66 to 70, 75 to 84.
Criminal Law – Topic 3092
Special powers – Search warrants – Issuance of – Civil rights limitations – Privileges – Solicitor-client communications – The Supreme Court of Canada held that solicitor-client privilege may be invoked, when a search warrant is executed – The court set out suggested procedures for the execution of a search warrant in law offices, particularly where solicitor-client privilege is involved – See paragraphs 48 to 84.
Criminal Law – Topic 3094
Special powers – Search warrants – Issuance of – Jurisdiction – The Supreme Court of Canada held that a justice has the discretion to refuse to issue a search warrant in certain cases, such as where a search would interfere with fundamental civil rights – See paragraphs 58 to 64.
Evidence – Topic 4230
Witnesses – Privilege – Lawyer-client communications – General – The Supreme Court of Canada held that solicitor-client privilege applied to the relationship between a legal aid applicant and the legal aid bureau and arose when the applicant began the application process – The court held, however, that the privilege did not protect criminally false statements made by the applicant – The court discussed and defined the scope and limits of solicitor-client privilege.
Evidence – Topic 4233
Witnesses – Privilege – Lawyer-client communications – Commencement of privilege and protection – The Supreme Court of Canada held that the lawyer-client privilege arose from the first dealings of the client to get advice – The court distinguished between the starting of the retainer and the starting of the solicitor-client relationship, which, with the privilege, may arise before the retainer – The court held that in the case of a legal aid applicant, the privilege arose upon application for legal aid – See paragraphs 30 to 47.
Evidence – Topic 4236
Witnesses – Privilege – Lawyer-client communications – When privilege may be invoked – The Supreme Court of Canada held that the solicitor-client privilege may be invoked before the trial or preliminary inquiry and as early as the execution of a search warrant – See paragraphs 53 to 57, 74.
Evidence – Topic 4241
Witnesses – Privilege – Lawyer-client communications – Extent of privilege – General – The Supreme Court of Canada discussed and defined the extent of solicitor-client privilege and held that it extended to the information provided in an application for legal aid, including information about financial means.
Evidence – Topic 4244
Witnesses – Privilege – Lawyer-client communications – Extent of privilege – Communications with client’s agent or lawyer’s agent – The Supreme Court of Canada held that solicitor-client privilege extended to communications between a client and his lawyer’s agent, such as a clerk or secretary – See paragraphs 42 to 43.
Evidence – Topic 4251
Witnesses – Privilege – Lawyer-client communications – Loss of privilege – Communications used to facilitate crime or constituting element of crime – The Supreme Court of Canada held that solicitor-client privilege did not extend to communications by a client to his solicitor which constitute an element of a crime, particularly false information about financial means given to obtain legal aid – See paragraphs 44 to 47, 72, 78.
Cases Noticed:
Solosky v. Government of Canada, [1980] 1 S.C.R. 821; 30 N.R. 380, consd. [para. 14].
Berd v. Lovelace (1577), 21 E.R. 33 refd to. [para. 19].
Dennis v. Codrington (1580), 21 E.R. 53, refd to. [para. 19].
Minter v. Priest, [1930] A.C. 558, appld. [para. 33].
R. v. Littlechild (1979), 19 A.R. 395; 51 C.C.C.(2d) 406, appld. [para. 37].
R. v. Cox and Railton (1884-5), 14 Q.B.D. 153, appld. [para. 46].
R. v. Colvin, ex parte Merrick, [1970] 1 C.C.C.(2d) 8, refd to. [para. 55].
Re B.X. Development Ltd. (1976), 36 C.R.N.S. 313 (B.S.S.C.), affd. 31 C.C.C.(2d), 14 (B.C.C.A.), refd to. [para. 55].
Re Alder et al. v. The Queen (1977), 37 C.C.C.(2d) 234, refd to. [para. 55].
Attorney General of Quebec v. T., G., W., R. and C. (1977), 2 C.R.(3d) 30, refd to. [para. 55].
Re D.I.R. and Canada Safeway Ltd. (1972), 26 D.L.R.(3d) 745, refd to. [para. 56].
Re D.I.R. and Shell Canada Ltd. (1975), 22 C.C.C.(2d) 70, refd to. [para. 56].
Re Borden and Elliott (1975), 30 C.C.C.(2d) 337, appld. [paras. 56, 57].
Re Presswood and Delzotto (1975), 36 C.R.N.S. 322, refd to. [para. 56].
Re B.X. Development (1976), 31 C.C.C.(2d) 14 (B.C.C.A.), affing. 36 C.R.N.S. 313, refd to. [para. 56].
Re B and The Queen (1977), 36 C.C.C.(2d) 235, refd to. [para. 56].
Re Pacific Press Ltd. and The Queen et al. (1977), 37 C.C.C.(2d) 487, appld. [para. 59].
Re Steel and The Queen (1974), 21 C.C.C.(2d) 278, refd to. [para. 56].
Statutes Noticed:
Act Respecting the Barreau du Quebec, R.S.Q. 1977, c. B-1, sect. 75 [para. 3]; sect. 131 [para. 16].
Charter of Human Rights and Freedoms, R.S.Q. 1977, c. C-12, sect. 9 [para. 16].
Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 443(1) [para. 49]; sect. 444 [para. 59].
Income Tax Act, S.C. 1970-71-72, c. 63, sect. 232 [para. 17, 67].
Legal Aid Act, R.S.Q. 1977, c. A-14, sect. 63, sect. 64 [para. 4].
Authors and Works Noticed:
Carter, R.F., The Law Relating to Search Warrants, p. 52, [para. 59].
Cross on Evicence (5th Ed.), p. 282 [para. 28].
Fontana, J.A., The Law of Search Warrants in Canada, [paras. 59, 60].
Phipson on Evidence (12th Ed.), p. 244 [para. 33].
Wigmore on Evidence (McNaughton Rev. 1961), vol. 8, paras. 2292 [para. 21]; 2304 [para. 33].
Counsel:
Jean-Marie Lariviere and Jean Pieree Lussier, for the appellants;
Pierre Robert and Sarto Blouin, for the respondent and the intervenant (Le Procureur General De la Province de Quebec);
Francois Aquin and Jocelyne Jarry, for the intervenant (Commission des Services Juridiques).
This case was heard on October 27 and 28, 1981, at Ottawa, Ontario, before MARTLAND, RITCHIE, DICKSON, BEETZ, ESTEY, CHOUINARD and LAMER, JJ., of the Supreme Court of Canada.
On June 23, 1982, LAMER, J., delivered the following judgment in French for the Supreme Court of Canada followed by its English language version:
