In 2002, the Supreme Court of Canada developed a protocol to be applied whenever a search warrant was executed and some of the documents seized could potentially contain privileged information, in the case of Lavallee, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61, known as the Lavallée Protocol. As since adapted in Quebec, it essentially allows the target of a search warrant to assert privilege over all or part of the documents seized, which triggers the appointment of an amicus curiae (Latin for “friend of the court”) whose responsibility is to review all potentially privileged documents to determine which, if any, are in fact protected by privilege.
Over the last few years, a new challenge has emerged with the seizure of computer equipment. Given the oft massive volume of technological documents that can be found on computer equipment, the execution of a Lavallée Protocol can be much longer, more complex and more expensive, requiring support from computer technicians and use of specialized software.
In the recent case of Director of Criminal and Penal Prosecutions v. Ville de Chambly, 2020 QCCS 4258, the Director (who directs all criminal and penal prosecutions in Québec on behalf of the government) had seized computer equipment through the execution of several search warrants. Privilege was asserted by two individuals over a small number of devices, which contained over 3.1 million technological documents.
The Director agreed to forego access to all technological documents which were outside the scope of the search warrants or which were not responsive to keyword searches. All told, the Director agree to forego access to 2.8 million technological documents (or 90%) of the 3.1 million documents. The amicus curiae and her team then devoted hundreds of hours of work to reviewing the remaining 240,000 documents and ultimately determined that only one document was effectively privileged in part.
In the order declaring the closure of the Lavallée Protocol, the Superior Court of Quebec (Criminal Division) took the opportunity to very clearly express that :
- The amicus curiae is the right hand of the Court such that collaboration with the amicus curiae is collaboration with the Court.
- The amicus curiae is duty-bound to maintain the strict confidentiality of the information provided to him/her by the holder of privilege.
- It is the responsibility of the holder of privilege to identify the documents over which privilege is asserted and to collaborate without restriction with the amicus curiae in their identification, including by providing keywords to allow searches in large universes of technological documents.
- A Lavallée Protocol has a single purpose: the protection of privileged documents. It is not to be used as an opportunity for a potential accused to explore the Crown’s evidence or try to obtain its disclosure, nor to delay an ongoing police investigation, nor to challenge the issuance of the search warrant.
In closing, given the disproportion between the outcome of the process (one partially privileged document) and the costs and time devoted to the process, the Court provides food for thought for future Lavallée Protocols:
- Should the Protocol set out mandatory deadlines which, if not met by the person asserting privilege, entail renunciation to privilege?
- Should a refusal to collaborate with the amicus curiae entail renunciation to privilege?
- Should the Director be obliged to immediately forego access to seized documents which are not covered by the search warrant?
- Should the Protocol entitle the amicus curiae to address the Court on an ex parte basis when necessary for the proper execution of the Protocol?
The author thanks Marie-Geneviève Bélanger for her assistance in preparing this article.