section 487.013(5)

INTRODUCTION AND BRIEF DESCRIPTION

This section allows for orders to be made to protect privileged communication between lawyers (or notaries in Quebec) and their clients.

SECTION WORDING

487.013(5) The order may contain any terms and conditions that the justice or judge considers advisable in the circumstances, including terms and conditions to protect a privileged communication between a lawyer and their client or, in the province of Quebec, between a lawyer or a notary and their client.

EXPLANATION

Section 487.013(5) of the Criminal Code of Canada provides the authority for a justice or judge to include certain terms and conditions in an order that is issued for the purpose of gathering evidence related to a criminal investigation. These terms and conditions can be considered advisable in the circumstances and may include provisions that protect privileged communications between a lawyer or notary and their client. The concept of privileged communication is an essential component of the legal system, as it allows individuals to speak freely and openly with their legal counsel without fear that their words will be used against them in court. This protection is particularly important in criminal proceedings, where individuals may be facing serious charges that carry significant consequences. In some instances, however, there may be a need to access privileged communications in order to gather evidence related to a criminal investigation. Section 487.013(5) of the Criminal Code of Canada recognizes this need, while also providing for measures to protect the interests of the parties involved. Under this section, the justice or judge has the discretion to include terms and conditions in the order that would protect privileged communications from being disclosed or used as evidence in the criminal proceedings. These terms and conditions may be considered necessary if the disclosure of privileged communications could harm the relationship between the lawyer and their client, or if it could compromise the integrity of the legal system. In conclusion, Section 487.013(5) of the Criminal Code of Canada provides an important safeguard for the protection of privileged communications in criminal proceedings. While there may be instances where privileged communications need to be accessed to gather evidence, this section ensures that appropriate measures are taken to protect the interests of the parties involved.

COMMENTARY

Section 487.013(5) of the Criminal Code of Canada is an important provision that allows a justice or judge to impose any terms and conditions deemed necessary to protect privileged communication between a lawyer and their client. In the province of Quebec, this protection extends to communication between a notary and their client. This provision acknowledges the importance of legal privilege as a fundamental principle of the justice system, recognizing the need to protect and preserve confidential communication between lawyers and their clients. Legal privilege is a cornerstone of the lawyer-client relationship and is essential in ensuring that clients can freely and candidly communicate with their lawyers without fear of disclosure. This protection of confidentiality provides a foundation of trust between clients and their lawyers, and ensures that clients have fair access to the law and legal representation. For this reason, it is important that any interference with this privilege is carefully scrutinized and only imposed where necessary to protect the public interest. Section 487.013(5) recognizes that in specific circumstances, legal privilege may need to be compromised in the interest of justice. However, this provision also acknowledges that legal privilege is fundamental to the justice system and balances the importance of privilege against the need for disclosure. The provision allows for the imposition of terms and conditions that protect the privileged communication, while also allowing for disclosure in limited circumstances where this is necessary. The terms and conditions that a justice or judge may impose under this provision will vary depending on the nature of the case and the circumstances surrounding the privileged communication. However, they will typically include provisions that limit the use and dissemination of privileged information, and may also require that the lawyer be present during any searches or seizures. These conditions are designed to ensure that confidential client information is not disclosed or misused while still allowing for the disclosure of relevant evidence where necessary. Overall, Section 487.013(5) is an essential provision that strikes a balance between the preservation of legal privilege and the need for disclosure in the pursuit of justice. It recognizes the importance of legal privilege as a fundamental principle of the justice system while also providing for the limited circumstances where interference with this privilege is necessary to protect the public interest. It is an example of the careful consideration given to the protection of individual rights and freedoms in Canada, and reflects the importance placed on the integrity of the justice system.

STRATEGY

Section 487.013(5) of the Criminal Code of Canada allows a justice or judge to order any terms and conditions they see fit in order to protect a privileged communication between a lawyer and their client or, in the province of Quebec, between a lawyer or a notary and their client. This section is intended to prevent the disclosure of confidential information between a client and their legal advisor during an investigative and judicial process. However, this section also presents some strategic considerations for both the prosecution and defence. One important strategic consideration for the defence is the timing to raise the issue of privilege. Since the burden of proof lies with the defence to establish that a particular communication is privileged, it is often better to bring up the issue of privilege early on in the investigation or court proceedings in order to ensure that all communications between the client and their legal advisor are protected. Another strategic consideration for the defence is to carefully consider the terms and conditions of the order. The defence counsel may wish to propose additional terms and conditions that would further protect the privileged communication. For example, the defence may wish to suggest that all communications and documents exchanged between parties be subject to a court-appointed special master" who will ensure that privileged information is not produced. On the other hand, the prosecution must decide whether to challenge the claim of privilege by the defence. This can be a difficult decision for prosecutors who may have access to evidence that is contradicted by claims of privilege. In some cases, the prosecution may have strong grounds to challenge a claim of privilege, such as where there is an indication of misconduct by the lawyer or the client. In those cases, the prosecution will need to weigh the potential benefits of breaking privilege against the risk of harming the case. One strategy that may be employed by the prosecution is to seek a Clayton waiver" from the defence. This waiver would allow the prosecution to access privileged communications that would normally be protected by attorney-client privilege. However, if the prosecution seeks the waiver, they will be required to demonstrate that there is a compelling reason to do so and that all reasonable alternatives have been exhausted. Another strategic consideration for both the prosecution and defence is the use of information share agreements" between law enforcement agencies. These agreements allow law enforcement to share information that would normally be privileged in the course of an investigation. However, these agreements typically include safeguards that protect privileged information from being disclosed without consent. In conclusion, Section 487.013(5) of the Criminal Code of Canada presents strategic considerations for both the prosecution and defence. Both sides will need to carefully consider the timing, terms, and conditions of any orders or waivers that relate to attorney-client privilege. They will also need to weigh any potential risks of disclosing privileged information against the potential benefits of such disclosure.