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ARTICLE · 16 FEBRUARY 2021

The Courts' Expectations Of The Parties To A Lavallée Protocol When Technological Documents Are Seized

In 2002, the Supreme Court of Canada developed a protocol to be applied whenever a search warrant was executed and some of the documents seized could potentially contain privileged information...

CanadaCorporate/Commercial Law

In 2002, the Supreme Court of Canada developed a protocol to be applied whenever a search warrant was executed and some of the documents seized could potentially contain privileged information, in the case of Lavallee, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61, known as the Lavallée Protocol. As since adapted in Quebec, it essentially allows the target of a search warrant to assert privilege over all or part of the documents seized, which triggers the appointment of an amicus curiae (Latin for "friend of the court") whose responsibility is to review all potentially privileged documents to determine which, if any, are in fact protected by privilege.

Over the last few years, a new challenge has emerged with the seizure of computer equipment. Given the oft massive volume of technological documents that can be found on computer equipment, the execution of a Lavallée Protocol can be much longer, more complex and more expensive, requiring support from

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