Proceeds of Crime (Money Laundering) and Terrorist Financing Act

Definition of judge

• 64 (1) In this section, judge means a judge of a superior court having jurisdiction in the province where the matter arises or a judge of the Federal Court.

• Marginal note:No examination or copying of certain documents when privilege claimed

  (2) If an authorized person acting under section 62, 63 or 63.1 is about to examine or copy a document in the possession of a legal counsel who claims that a named client or former client of the legal counsel has a solicitor-client privilege in respect of the document, the authorized person shall not examine or make copies of the document.

• Marginal note:Retention of documents

  (3) A legal counsel who claims privilege under subsection (2) shall

  • (a) place the document, together with any other document in respect of which the legal counsel at the same time makes the same claim on behalf of the same client, in a package and suitably seal and identify the package or, if the authorized person and the legal counsel agree, allow the pages of the document to be initialled and numbered or otherwise suitably identified; and

  • (b) retain it and ensure that it is preserved until it is produced to a judge as required under this section and an order is issued under this section in respect of the document.

• Marginal note:Application to judge

  (4) If a document has been retained under subsection (3), the client or the legal counsel on behalf of the client may

  • (a) within 14 days after the day the document was begun to be so retained, apply, on three days notice of motion to the Deputy Attorney General of Canada, to a judge for an order

    • (i) fixing a day, not later than 21 days after the date of the order, and a place for the determination of the question whether the client has solicitor-client privilege in respect of the document, and

    • (ii) requiring the production of the document to the judge at that time and place;

  • (b) serve a copy of the order on the Deputy Attorney General of Canada; and

  • (c) if the client or legal counsel has served a copy of the order under paragraph (b), apply at the appointed time and place for an order determining the question.

• Marginal note:Disposition of application

  (5) An application under paragraph (4)(c) shall be heard in private and, on the application, the judge

  • (a) may, if the judge considers it necessary to determine the question, inspect the document and, if the judge does so, the judge shall ensure that it is repackaged and resealed;

  • (b) shall decide the question summarily and

    • (i) if the judge is of the opinion that the client has a solicitor-client privilege in respect of the document, order the release of the document to the legal counsel, or

    • (ii) if the judge is of the opinion that the client does not have a solicitor-client privilege in respect of the document, order that the legal counsel make the document available for examination or copying by the authorized person; and

  • (c) at the same time as making an order under paragraph (b), deliver concise reasons that identify the document without divulging the details of it.

• Marginal note:Order to deliver

  (6) If a document is being retained under subsection (3) and a judge, on the application of the Attorney General of Canada, is satisfied that no application has been made under paragraph (4)(a) or that after having made that application no further application has been made under paragraph (4)(c), the judge shall order that the legal counsel make the document available for examination or copying by the authorized person.

• Marginal note:Application to another judge

  (7) If the judge to whom an application has been made under paragraph (4)(a) cannot act or continue to act in the application under paragraph (4)(c) for any reason, the application under paragraph (4)(c) may be made to another judge.

• Marginal note:Costs

  (8) No costs may be awarded on the disposition of an application under this section.

• Marginal note:Prohibition

  (9) The authorized person shall not examine or make copies of any document without giving a reasonable opportunity for a claim of solicitor-client privilege to be made under subsection (2).

• Marginal note:Prohibition

  (9.1) The authorized person shall not examine or make copies of a document in the possession of a person, not being a legal counsel, who contends that a claim of solicitor-client privilege may be made in respect of the document by a legal counsel, without giving that person a reasonable opportunity to contact that legal counsel to enable a claim of solicitor-client privilege to be made.

• Marginal note:Waiver of claim of privilege

  (10) If a legal counsel has made a claim that a named client or former client of the legal counsel has a solicitor-client privilege in respect of a document, the legal counsel shall at the same time communicate to the authorized person the client’s latest known address so that the authorized person may endeavour to advise the client of the claim of privilege that has been made on their behalf and may by doing so give the client an opportunity, if it is practicable within the time limited by this section, to waive the privilege before the matter is to be decided by a judge.