Application for Declaration of Waiver of Privilege (Precedent)

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Notice

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Style of cause  

C A N A D A File# ________________
PROVINCE OF [PROVINCE]
COUNTY OF [COUNTY]

IN THE [LEVEL OF COURT] OF [PROVINCE]
([name] Region)

BETWEEN:

HIS MAJESTY THE KING

– and –

[ACCUSED NAME]

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NOTICE OF APPLICATION
(ex parte and in camera)
(Application for Declaration of Waiver of Solicitor-Client Privilege)

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TAKE NOTICE that an in camera Application is being made for an Order of Declaration affirming the waiver of any privilege associated with the ... .

WHEREAS ...

THE APPLICANT RELIES ON THE FOLLOWING GROUNDS

1. Courts have a duty to not permit intrusion upon privilege where it might be present: see R v AB, 2014 NLCA 8 (CanLII), 346 Nfld & PEIR 218, per Harrington JA at paras 21 to 23
2. All counsel have a common law duty of loyalty to their clients, which includes a duty of confidentiality: Solosky v. The Queen, 1979 CanLII 9 (SCC), [1980] 1 SCR 821. Likewise, members of the [law society] are bound by [rule re confidentiality] requiring that they hold in confidence all information concerning the business and affairs of a client.
3. Investigators are not permitted to interview lawyers or former lawyers where there is a reasonable possibility that the interview may intrude on solicitor-client privilege: e.g. R v Rudolph, 2017 NSSC 333 (CanLII)
4. It is the court’s responsibility—not any of the parties—to determine whether privilege exists once a claim of privilege has been made or where there is a legal presumption that privilege exists: see R v Herritt, 2019 NSCA 92 (CanLII), 384 CCC (3d) 25, per Beveridge JA, at para 122.
5. Any information received by a lawyer in his professional capacity is usually presumed confidential: Ott v Fleishman, 1983 CanLII 489 (BC SC), 5 WWR 721, 46 BCLR 321 There is a presumption of confidentiality and privilege protecting all communications and information shared between the lawyer and client: Foster Wheeler v Societe intermunicipale de gestion et d'elmination des dechets, 2004 SCC 18 (CanLII), [2004] 1 SCR 456.
6. The police obtained written or oral waivers from a total of 81 clients of the firm. An additional seven (7) clients were asked but declined to waive privilege.
7. Superior courts have jurisdiction arising from their obligation to protect privilege and their inherent jurisdiction to grant orders concerning the interview of lawyers pursuant to criminal investigations: R v AM, 2021 ONSC 2725.
8. Any additional grounds as counsel may advise and this Honourable Court may permit.

IN SUPPORT OF THIS APPLICATION, THE APPLICANT RELIES ON THE FOLLOWING EVIDENCE:

1. Affidavit of [officer]
2. Accompanying Exhibits:
   1. waiver of [client name]
3. ...

THE APPLICANT SEEKS THE FOLLOWING RELIEF:

1. An Order...

FOR THE PURPOSE OF THIS APPLICATION, THE APPLICANT MAY BE SERVED AT:

In accordance with the appropriate Rules of Court,

[party name]
[party title]
[address]
[address]
[address]
Tel: (xxx) xxx-xxxx
Fax: (xxx) xxx-xxxx
Email: xxx@xxxxxx.xxx

DATED at ______________, in the Province of _______________, this _____ day of _____________, 20___.

_______________________________ [Counsel's name] [Counsels title]

[Internal File Coding]

Affidavit

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Style of cause  

C A N A D A File# ________________
PROVINCE OF [PROVINCE]
COUNTY OF [COUNTY]

IN THE [LEVEL OF COURT] OF [PROVINCE]
([name] Region)

BETWEEN:

HIS MAJESTY THE KING

– and –

[ACCUSED NAME]

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AFFIDAVIT OF [AFFIANT NAME]

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I, [Affiant name], of [City], in the [Community] and Province of [Province], make oath and say as follows that:

1. I am the [relationship to case] herein and have personal knowledge of the matters and facts herein deposed to, except where stated to be based on information and belief, in which case I do verily believe the same to be true.
2. ...

SWORN/AFFIRMED TO at [city], in the region of [region], Province of [province], this [day] day of [month], 20____, before me: ________________________________ Commissioner of Oaths/Barrister of the [level] Court of [province]

) ) ) ) ) ) _____________________________ ) [Affiant Name] ) [Affiant title] )

[Internal File Coding]

EXHIBIT A
[DESCRIPTION] EXHIBIT B
[DESCRIPTION]

Order

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Style of cause  

C A N A D A File# ________________
PROVINCE OF [PROVINCE]
COUNTY OF [COUNTY]

IN THE [LEVEL OF COURT] OF [PROVINCE]
([name] Region)

BETWEEN:

HIS MAJESTY THE KING

– and –

[ACCUSED NAME]

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ORDER
(Re Waiver of Solicitor-Client Privilege)

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BEFORE THE HONOURABLE JUSTICE:

BEFORE THE HONOURABLE JUSTICE [name]

WHEREAS on [date], the Crown made Application to determine whether any potential solicitor-client privilege has been extinguished by way of waiver from potential clients of the firm [name] (the "firm").

AND WHEREAS investigators with the RCMP commercial crime section seek to interview persons previously employed by or a member of the firm, including former and current members of the provincial bar, concerning their dealings with certain complainant clients of the firm;

AND WHEREAS any persons previously employed by or a member of the firm have no obligation to speak to members of the RCMP notwithstanding any other part of this Order;

AND UPON READING the materials filed by the Applicant Crown Counsel consisting of:

• an affidavit of Cst. [name] summarizing relevant investigative steps taken by members of the RCMP;
• written solicitor-client privilege waivers of certain complainant clients of the firm;
• a list of potential clients who declined to agree to any waiver of potential privilege;

AND UPON HEARING the submissions of [name], the Applicant Crown Counsel;

AND ON BEING SATISFIED that the client waivers are in order;

IT IS ORDERED that any solicitor-client privilege connected with the following potential clients have been duly waived for the following persons:

IT IS FURTHER ORDERED that any solicitor-client privilege held by clients other than those listed herein remain unaffected.

DATED at ______________, in the Province of _______________, this _____ day of _____________, 20___.

_________________________________________________ Justice of the [Level of Court] of [Province]

[Internal File Coding]