Can a lawyer waive privilege on behalf of their client under s. 488.1(2), (3) and (6) of the Canadian Criminal Code?

The difficulties with s. 488.1(2), (3) and (6) are exacerbated, in my view, by the fact that there are no notice requirements in s. 488.1. In other words, s. 488.1 contemplates that a client may have his or her privilege effectively stripped without ever receiving notice. It bears repeating that privilege belongs to the client and it is the client alone or the client’s actions which decide when to waive it. While I agree with Dambrot J. in R. v. Fink that because a client has retained a lawyer to protect confidential communications, it is the lawyer who might rightly be donned with the responsibility of asserting privilege during a search of his or her office. In fact, a lawyer has a professional duty to protect the confidences of his or her clients. However, s. 488.1 goes further than that and effectively permits a lawyer to waive privilege on behalf of his or her client, either inadvertently or otherwise. As Côté J.A. points out in Lavallee v. H.M.T.Q. at para. 35, “[t]hat the lawyer has a duty to claim privilege, does not raise even a presumption that he has authority to waive it or to litigate over it.” While it might be true that lawyers generally can be entrusted to communicate with and receive instructions from their clients when faced with a search on their offices, this will not always be done. In his reasons in Lavallee v. H.M.T.Q., Côté J.A. articulated some examples of why this may be the case: a lawyer may be unable to find the client within the 14 day time limit; a lawyer may find himself or herself in conflict with the interests of a client if the lawyer is also accused of an offence; a lawyer may be unable to contact a client because of the lawyer’s absence, illness or incompetence. These difficulties are compounded if the papers seized involve a number of or all clients. In other words, if a lawyer fails to act in compliance with s. 488.1, possibly in total and unavoidable ignorance, privilege which attached to any documents seized by the police will be lost, or effectively waived. Moreover, privilege will have been waived, not by the client to whom the privilege rightly belongs, but by his or her lawyer.