Case information

Charter of Rights and Freedoms — Search and seizure — Warrantless seizure — Superior Court granting Lavallee motion brought by police force and Crown and authorizing them to have access to entire recording of telephone conversation between two lawyers — Whether Superior Court erred in law in interpreting concept of crime exception related to Lavallee motion — Whether Superior Court erred in law in not complying with fundamental principles associated with privilege — Whether Superior Court erred in refusing to apply principle of minimization to entire recording of conversation.

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Two lawyers who represented parties to civil litigation had a telephone conversation to discuss the possibility of a settlement. The conversation was recorded by one of the lawyers, who alleged that the other lawyer had threatened or intimidated him or made an extortion attempt against him. He met with the police to make a complaint and gave them a USB key containing the recording. A police officer subsequently reported the warrantless seizure of the USB key to a justice of the peace. The Service de police de la Ville de Montréal (“SPVM”) and the Director of Criminal and Penal Prosecutions (“DCPP”) made a joint Lavallee motion (named for Lavallee, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61, [2002] 3 S.C.R. 209) seeking authorization to have access to the parts of the recording that were not privileged. The Superior Court granted the motion and authorized the SPVM and the DCPP to have access to the entire recording. The judge was satisfied that there was sufficient evidence to justify applying the crime exception.