Law Times

Law Times • JuLy 9, 2018 Page 3 www.lawtimesnews.com Lawyer loses appeal, fails to expand internet privileges BY ANITA BALAKRISHNAN Law Times L awyers say a recent ap- peal in a child pornog- raphy case highlights the complexity of how courts treat police searches and inter- net restrictions, particularly when the accused is a lawyer. In R. v. Schulz, 2018 ONCA 598, Martin Schulz, an Ontario lawyer, appealed his conviction of one count of possession of child pornography and the sen- tence he received, which includ- ed 45 days of imprisonment on the weekends, three years' pro- bation and a 10-year prohibition with limitations on internet and email access. In the interim of the ap- peal, Schulz was still in private practice, according to the Law Society of Ontario's directory, although he is restricted from representing minors. Because he is a lawyer, Schulz's sentence means that he is practising law while facing re- strictions to his internet usage. Further, Schulz argued in his appeal that, as a lawyer, the seizure of his devices by police in 2012 and search of his de- vices by a designated examiner in 2013 could have exposed the privileged information of his clients. Schulz said the search vio- lated his s. 8 rights under the Canadian Charter of Rights and Freedoms. In his appeal of his internet usage probation, Schulz also said he was at low risk to reoff- end and noted that the internet is "an indisputable component of everyday life." The conviction appeal was dismissed by Court of Appeal justices David Brown, David Watt and Grant Huscroft, in a decision published on June 29. Schulz was granted leave to ap- peal the internet limiting terms, but the sentence appeal was ulti- mately dismissed. "The sentencing judge con- sidered the relevant factors and crafted an order that reasonably attempted to minimize the risk the appellant poses to children and responded to his specific circumstances," said Brown, with Watt and Huscroft concur- ring. In the Court of Appeal rul- ing, it was noted that Schulz was accused of possessing 101 images and 155 videos of child pornography, consisting of 45 unique images and 111 unique movies. Police got a warrant to search Schulz's home for evidence of possession of child pornography on devices and in documents, the ruling said. The warrant included provi- sions to protect solicitor-client privilege, said the ruling, includ- ing a requirement that the police seal all seized items, unread, un- til further order of the court. Lawyers say the Court of Ap- peal ruling is the latest example of how technologies such as digital files and online databases fit into established case law sur- rounding search and seizure and probation. "Definitely, solicitor-client privilege is a special animal," says Megan Savard, a partner at Ad- dario Law Group LLP. Although Savard declined to comment on whether the outcome of the case was correct, she says that there's "almost nothing more invasive than a search of a digital device, regardless of whether there's privilege. "[T]o the extent we can take the protections extended to law- yers [and] apply them to other searches to digital devices, that's something we should be doing," she says. William McDowell, a partner at Lenczner Slaght Royce Smith Griffin LLP, says it is important to protect privilege when search- ing lawyers' offices. McDowell says the courts have worked out a way to do it over the past three decades. "The Supreme Court, in a series of cases, has said that solicitor-client privilege is to be protected in a manner as close to absolute as possible. That's the standard. And the Court of Ap- peal here effectively said that was done," McDowell says. "There were a couple of mi- nor things, they point to a few slips . . . but they say that's not enough to warrant a constitu- tional remedy. To me, that's the just the Court of Appeal apply- ing the existing law from the Su- preme Court." Schulz, who represented himself in the appeal, took issue with several aspects of the way the search was conducted. But the trial judge determined that only some of the issues raised by Schulz were s. 8 violations. "I do not find that there was an overall pattern of conduct on the part of police which would impact public confidence in the administration of justice," wrote the trial judge, Justice Gisele Miller of the Superior Court of Justice. As a result, the trial judge only excluded evidence from the six unsealed items and "the devices on which no offensive materials were found." "There was a challenge to the search of various electronic devices that a lawyer possessed . . . The Court of Appeal said on that issue that deference be given to the sentencing judge — that she considered all the relevant part of the issue and, there- fore, that was dismissed," says Robin McKechney, partner at Steinecke Maciura LeBlanc Bar- risters & Solicitors. The second part of Schulz's appeal centred on his restriction from internet usage. The probation order says Schulz is limited from using "any device capable of access- ing the Internet or email and capable of storing data in a digi- tal format," including comput- ers, electronic media, cameras, PDAs and scanners. The order includes excep- tions for use in the office or for employment-related purposes, communicating with legal counsel, reviewing legal docu- ments and obtaining legal ad- vice. The order says Schulz must prove to his probation officer that he has installed protection software on his computer and that police and probation offi- cers can search Schulz's comput- er "subject to reasonable precau- tions being taken to protect so- licitor/client privilege respecting any client documents on those computers." The appeal judge opted not to interfere with the sentencing judge's decision, writing that the sentencing judge "considered the relevant factors and crafted an order that reasonably attempted to minimize the risk the appel- lant poses to children and re- sponded to his specific circum- stances." Neither Schulz nor Grace Choi, who represented the Crown, offered comment on the case before deadline. "The Court of Appeal said that, again, the trial judge or the sentencing judge applied all of the appropriate factors and gave deference to her — and although they gave leave to appeal that part of the sentence, they dis- missed the appeal," McKechney says. "The Court of Appeal gener- ally will grant leave on sentence appeals, but that doesn't mean you've won the appeal." Nader Hasan, partner at Stockwoods LLP, said the deci- sion was interesting "both from the conviction appeal perspec- tive and also on the sentencing. "A lawyer's phone and com- puter is really no different from their office. Increasingly, in this day and age, a lawyer's office is where their computer and phone happen to be," he says. McDowell says he thinks it's true that all advocates and liti- gators have to have access to the internet to practice. He also says that he thinks restricting internet usage to em- ployment purposes seems to be a reasonable way of balancing the risk of reoffending against the real needs that a lawyer has. "As a practical matter, access to the internet has replaced the law library," McDowell says. "It's interesting, the court seems to accept that without question. Because the court of appeal observes how the trial judge crafted a remedy that still allows the lawyer access to the internet, there was no sugges- tion that he didn't need it . . . or that it was unreasonable for him to insist that he have it." LT NEWS Reliable insight on traffic offences Order # L7798-8608-65203 $149 Softcover May 2018 approx. 640 pages 978-0-7798-8608-1 Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. Get reliable insight on the law and procedures related to traffic offences in Ontario. This convenient handbook thoroughly covers every offence and includes concise digests of leading cases and expert commentary. Convenient tables guide you through the key statutory provisions and show you examples of wording for charging documents. You get a practical combination of in-depth analysis in a user-friendly format for quick access to the answers you need. New in this edition This edition of The Law of Traffic Offences updates many of the procedural provisions for Traffic Offences trials and appeals, including recent decisions on adjournments disclosure motions in the Superior court for certiorari. The chapters on Offences, Careless Driving, Stunt Driving and CVOR enforcement have been updated. The reader will also note updates to the Sentencing provisions, as well as some guidance on the effect of the recent Supreme Court of Canada decision R. v. Jordan on Highway Traffic Act prosecutions. New Edition The Law of Traffic Offences, Fourth Edition Scott C. Hutchison, B.A., LL.B., Justice David S. Rose, and Justice Philip Downes © 2018 Thomson Reuters Canada Limited 00251KT-91859-NP Available risk-free for 30 days Online: store.thomsonreuters.ca Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 A lawyer has lost his appeal over a convic- tion for possessing child pornography.

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