Application for Declaration of Waiver of Privilege (Precedent): Difference between revisions

Revision as of 14:06, 10 July 2021

PRECEDENT TERMS OF USE All forms, templates and precedents, including anything found on this page, can be used without the need for any attribution.

Notice

See also: Searches Intruding on Solicitor-Client Privilege and Law Office Searches

Application to Determine Privilege
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] *NOTICE OF APPLICATION (ex parte)* (') TAKE NOTICE that an in camera Application is being sought for an Order of Declaration affirming the waiver of any privilege associated with the ... . WHEREAS ... THE APPLICANT RELIES ON THE FOLLOWING GROUNDS Generally, 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 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 Nova Scotia Barrister Society are bound by Rule 3.3 of the Code of Conduct requiring that they hold “in strict confidence all information concerning the business and affairs of a client”. 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 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. 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. 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. 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. 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: Affidavit of [officer] Accompanying Exhibits: waiver of [client name] ... THE APPLICANT SEEKS THE FOLLOWING RELIEF: An Order... DATED at ______________, in the Province of _______________, this _____ day of _____________, 20___. _______________________________ [Counsel's name] [Counsels title] [Internal File Coding]

Affidavit

AFFIDAVIT (GENERIC)

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]

AFFIDAVIT OF [AFFIANT NAME]

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

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.
...

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

Order
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] ORDER *(...)* Before the Honourable Justice Presiding: WHEREAS on [date], a .... . AND WHEREAS the appropriate persons have been notified; IT IS ORDERED that the .... DATED at ______________, in the Province of _______________, this _____ day of _____________, 20___. _________________________________________________ Justice of the [Level of Court] of [Province] [Internal File Coding]

@@ Line 16: / Line 16: @@
 {{I-Start}}'''THE APPLICANT RELIES ON THE FOLLOWING GROUNDS'''{{I-End}}
-# There is a presumption of privilege protecting records held by a lawyer concerning the ...
+# Generally, 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
-# The law states that determination of privilege is in the sole jurisdiction of the judge and not any of the parties.
+# 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 Nova Scotia Barrister Society are bound by Rule 3.3 of the Code of Conduct requiring that they hold “in strict confidence all information concerning the business and affairs of a client”.
-# The police obtained waivers from client(s) of the [lawyer/law firm]
+# 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
-# ...
+# 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.
+# 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.
+# 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.
+# 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.
 # Any additional grounds as counsel may advise and this Honourable Court may permit.