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Criminal law – Immunities and privileges – Seizure under s. 487 of Criminal Code – Whether litigation privilege can be asserted against seizure by police that authorized by search warrant related to criminal investigation involving same facts as civil litigation in which privilege being asserted – Whether litigation privilege, when asserted with respect to information seized by police under search warrant executed in context of criminal investigation, requires, in same way as legal advice privilege, that information be sealed and hearing held in accordance with Lavallee, Rackel & Heintz v. Canada (Attorney General); White, Ottenheimer & Baker v. Canada (Attorney General); R. v. Fink, 2002 SCC 61 – Section 487 of Criminal Code, S.C.R. 1985, c. C-46.

An arrest warrant was issued against the respondents Smith, Brien, Beauchemin, Gallant and Weeks for the following offences: fraud, mischief in relation to data, unauthorized use of a computer, theft, possession and conspiracy. A few days later, a search warrant was executed in the office of the respondent Skyservice F.B.O. Inc. The facts provided in support of the warrant application concerned the move of certain employees of the Exécaire company, namely Smith, Brien et Beauchemin, to Skyservice, where O’Brien and Weeks worked. The 2 companies are competitors in the airplane maintenance industry. The Exécaire employees all quit that company on the same date, April 19, 2010, to go to work for Skyservice. It is alleged that they transferred data, client lists and procedure manuals to Skyservice and that, as a result, Exécaire was no longer able to use the NDT inspection technique for the clients in question whereas Skyservice was able to do so immediately after the transfer. Smith had exchanged emails and attended meetings with Weeks to negotiate his transfer and that of the other Exécaire employees to Skyservice. The search warrant authorized the seizure of Skyservice’s computer server, that is, of the contents of the electronic mailboxes of five Skyservice employees, who were not lawyers. At the time of the seizure, it was argued that certain emails (approximately 400 of them) could not be seized because they were protected by solicitor-client privilege. For approximately 80 other emails, the applicants raised only litigation privilege.