There is no statutory immunity afforded to the Crown in respect of an order sought by the Law Society of Upper Canada authorizing its investigator to seize a Crown brief which included wire tap evidence in the possession of the RCMP to assist in the investigation of a lawyer for professional misconduct. The doctrine of intrajurisdictional immunity did not insulate the RCMP from an order for search and seizure given the importance of the public interest protected by the Law Society and s.8(2)(c) of the Privacy Act, R.S.C., 1985, c.P-21, that says the federal government’s obligation to keep information confidential is subject to court orders affecting those documents.

Administrative law – Barristers and solicitors – Criminal investigations – Judicial review – Disclosure – Public interest – Evidence – Crown agents – Royal Canadian Mounted Police – Jurisdiction – Intrajurisdictional immunity – Freedom of information and protection of privacy – Public bodies

Law Society of Upper Canada v. Canada (Attorney General), [2008] O.J. No. 210, Ontario Superior Court of Justice, January 22, 2008, G.I. Pardu J.

The Law Society sought an order authorizing its investigator to seize a Crown brief including wire tap evidence in the possession of the RCMP to assist in the investigation of a lawyer for professional misconduct. The Crown attorney being investigated was suggested to have been involved in money laundering and expressing racist views. The Attorney General of Canada (the “AG”) argued that the Court had no jurisdiction to make the order sought, since the RCMP was an agent of the Crown and the Law Society Act, R.S.O. 1990, c.L.8 does not bind the Crown as provided for by s.17 of the Interpretation Act, R.S.C. 1985, c. I-21, “No enactment is binding on Her Majesty or Her Majesty’s rights or prerogatives in any manner, except as mentioned or referred to on the enactment.” Alternatively, the AG argued that the doctrine of intrajurisdictional immunity prevented a province from intruding upon the federal regime established by the Privacy Act, R.S.C. 1985, c. P-21, for the release of documents held by federal government institutions.

The Court held the Crown did not have immunity under Section 17 of the Interpretation Act from such an order, in light of s.8(2)(c) of the Privacy Act. The Privacy Act establishes a regime for an individual to obtain access to information about himself or herself, but provides that the federal government may refuse to disclose personal information obtained in the course of criminal investigations. The RCMP is a government institution for the purposes of the Privacy Act. Section 8(2)(c) provides that personal information under the control of a government institution shall not, without the consent of the individual to whom it relates, be disclosed, except “for the purpose of complying with a subpoena or warrant issued or order made by a court, person, or body with jurisdiction to compel production of information or for the purpose of complying with rules of court relating to the production of information” which amounts to an express statutory recognition that courts like provincial superior courts may make orders in relation to documents held by federal government institutions.

The Court also rejected the AG’s argument that institutional immunity, which serves to protect one level of government from “intrusions, even incidental ones, by the other level”, applied so that the Court had no jurisdiction to make such an order. The notion of protecting the federal Crown from intrusions by the province makes no sense when the federal government has said in Section 8(2)(c) of the Privacy Act that its obligations to keep information confidential is subject to court orders affecting those documents. Powers of search and seizure granted to a Law Society investigator do not interfere with the access to Information regime established by the Privacy Act for persons who are the subject of the records. The powers of search and seizure which may be granted to a Law Society investigator are therefore the protection of the public and relate to an important provincial concern, investigation and discipline of lawyers. When applied to Crown briefs, they only have an incidental effect on matters within federal jurisdiction. Here, the Law Society’s powers of search and seizure will result in no operational conflict. The RCMP are already bound to abide by rules for production of documents in civil proceedings in the province and the doctrine of intrajurisdictional immunity does not apply so as to institute the RCMP from an order for search and seizure.

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