Festing v. Canada (Attorney General)

Festing v. Canada (Attorney General)

The Lavallee guidelines govern searches of any place where privileged documents may reasonably be expected to be located; accordingly 'law office' should be interpreted for that purpose to include such places and 'document' is defined as in s.321 of the Criminal Code. The Court declined to extend the Lavallee regime...

Source-derived case information.

Citation
2003 BCCA 112
Parties
Respondent/applicant: Mark Festing; Respondent/applicant: Ashleigh Festing; Respondent/applicant: B.W.I. Management Ltd. (formerly Phased International Holdings Ltd.); Respondent/applicant: CeJay Equities Ltd.; Respondent/applicant: Phase Construction Ltd. (formerly Phased Construction Ltd.); Respondent/applicant: M.P.H. Holdings Ltd.; Respondent/applicant: O.S. Construction Services Ltd.; Respondent/applicant: Phase Construction (W.V.) Ltd.; Respondent/applicant: Phase Construction (N.S.) Ltd.; Respondent/applicant: 475338 British Columbia Ltd.; Respondent/applicant: Marash Holdings Ltd.; Respondent/applicant: Ashmar Developments Ltd.; Respondent/applicant: Ashmar Leasing Ltd.; Respondent/applicant: Phase Realty Inc.; Respondent/applicant: The Keystone Trust; Respondent/applicant: Rockwell Management Ltd.; Respondent/applicant: Phase Construction (R.M.) Ltd.; Respondent/applicant: Stone Haven Developments Ltd.; Respondent/applicant: Steven O. Youngman; Respondent/applicant: Paul Gaster; Respondent/applicant: Eric Emerson Huber; Appellant/respondent: Attorney General of Canada; Intervenor: Law Society of British Columbia
Court
British Columbia Court of Appeal
Jurisdiction
Canada
Judgment Date
25 February 2003
Procedural Posture
Applications Under Ss.487 and 488.1 of the Criminal Code; Constitutional Challenge to Law Office Searches / Reconsideration on Remand From the Supreme Court of Canada Pursuant to S.43(1.1) of the Supreme Court Act
Outcome
Appeals dismissed in part; s.488.1 declared unconstitutional (as previously); appeals concerning s.487 dismissed and prior order reading 'other than a law office' into s.487 set aside; scope of Lavallee guidelines clarified and extended.
Legal Topics
Section 487 Criminal Code, Section 488.1 Criminal Code, Lavallee Guidelines, Law Office Searches, Solicitor Client Privilege, Charter S.8
Source Language
english
Constitutional Law Criminal Law Search and Seizure Evidence Law Professional Privilege Section 487 Criminal Code Section 488.1 Criminal Code Lavallee Guidelines +3 more

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Parties

Mark Festing

Respondent/applicant

Ashleigh Festing

Respondent/applicant

B.W.I. Management Ltd. (formerly Phased International Holdings Ltd.)

Respondent/applicant

CeJay Equities Ltd.

Respondent/applicant

Phase Construction Ltd. (formerly Phased Construction Ltd.)

Respondent/applicant

M.P.H. Holdings Ltd.

Respondent/applicant

O.S. Construction Services Ltd.

Respondent/applicant

Phase Construction (W.V.) Ltd.

Respondent/applicant

Phase Construction (N.S.) Ltd.

Respondent/applicant

475338 British Columbia Ltd.

Respondent/applicant

Marash Holdings Ltd.

Respondent/applicant

Ashmar Developments Ltd.

Respondent/applicant

Ashmar Leasing Ltd.

Respondent/applicant

Phase Realty Inc.

Respondent/applicant

The Keystone Trust

Respondent/applicant

Rockwell Management Ltd.

Respondent/applicant

Phase Construction (R.M.) Ltd.

Respondent/applicant

Stone Haven Developments Ltd.

Respondent/applicant

Steven O. Youngman

Respondent/applicant

Paul Gaster

Respondent/applicant

Eric Emerson Huber

Respondent/applicant

Attorney General of Canada

Appellant/respondent

Law Society of British Columbia

Intervenor

Procedural Posture

Applications Under Ss.487 and 488.1 of the Criminal Code; Constitutional Challenge to Law Office Searches / Reconsideration on Remand From the Supreme Court of Canada Pursuant to S.43(1.1) of the Supreme Court Act

Legal Issues

  1. 1 Whether the Lavallee guidelines should be confined to traditional law offices or extended to other places where privileged documents may reasonably be expected to be located
  2. 2 Whether the protection should extend to all documents in the possession or control of a lawyer wherever located
  3. 3 Proper definition of 'document' for application of Lavallee guidelines

Ratio Decidendi

The Lavallee guidelines govern searches of any place where privileged documents may reasonably be expected to be located; accordingly 'law office' should be interpreted for that purpose to include such places and 'document' is defined as in s.321 of the Criminal Code. The Court declined to extend the Lavallee regime further to all places where a lawyer may have possession or control of documents because that issue was beyond the scope of the constitutional questions and better addressed by Parliament or law societies.

Court Disposition

Appeals dismissed in part; s.488.1 declared unconstitutional (as previously); appeals concerning s.487 dismissed and prior order reading 'other than a law office' into s.487 set aside; scope of Lavallee guidelines clarified and extended.

Orders

  • Dismiss the Attorney General's appeals regarding the constitutionality of s.488.1 of the Criminal Code
  • Dismiss the appeals of Huber, Festing, Gaster and Youngman regarding the constitutionality of s.487 of the Criminal Code and set aside this Court's prior order reading the words 'other than a law office' into s.487