Law Times

Law times • OctOber 3, 2011 NEWS PAGE 5 LSUC issues guidelines on law office searches Concern follows 2010 child pornography investigation in Timmins BY MICHAEL McKIERNAN Law Times yers facing a police search of their law offi ces. Bencher Paul Schabas, who chairs the professional regula- tion committee, said the proto- col would be available to law- yers in the form of a two-page checklist as well as a long-form version. "Sometimes you don't get a lot of time to look at the guidelines when the police are knocking on the door, so we have a quick overview," Scha- bas said while presenting the guidelines to Convocation on Sept. 22. "Th ere are details that you can read at your leisure, hopefully not when you're in custody, because one of the points that is made up front is whatever you do, do not ob- struct the search." Instead, lawyers should closely examine the search warrant provided by police to check that they've arrived at the correct place on the right date. Th e warrant should also be signed and identify both the off ence under investigation and the documents sought. Lawyers should assert privi- T lege over all documents to be seized. Th ey should also ask to seal everything so that a court can make a determination on what is privileged at a later date. In the event that the lawyer is the target of the investiga- tion or may be in a confl ict of interest, the guidelines say this should be raised with police so that a court-appointed referee can become involved. In addi- tion, the court may want to ap- point an independent forensic computer examiner. "Often, searches will be seeking info on a computer, and there are lots of complexi- ties involved with that," Scha- bas said. Th e guidelines suggest law- yers should help police to lo- cate the documents but also he Law Society of Up- per Canada has drawn up guidelines for law- task of storing the computers, separating privileged fi les, and isolating any potentially of- fensive materials. "Any num- ber of ongoing prosecutions would be at risk if there was any fi nding whatsoever of the slightest breach of the solici- tor-client privilege, no matter how inadvertent," Hennessy wrote, praising police for their co-operative attitude. Sloan is facing two counts of possession of child pornog- raphy and a further charge of distributing child The guidelines apply to law- yers only as 'the law is not yet settled on the issue of privilege with respect to paralegals,' says Paul Schabas. take copies of all of the ma- terials seized if that's possible. Clients whose fi les are aff ected should be notifi ed about what's happening as well as the law society itself. "Th e law society may have an interest in being involved. Th ey may provide assistance. Th ey can provide the names of people who can serve as referees, for example, or as in- dependent forensic computer examiners. Th e law society is very active publicly in defence of solicitor-client privilege and the development of these guidelines is simply another step in that work we do." Last year, in fact, the law so- ciety intervened in the case of Timmins, Ont., criminal lawyer Brad Sloan. When police raided his home and offi ce as part of a child pornography investigation, the LSUC sent a representative to observe the search. At the time, the law society said offi cers shouldn't be al- lowed to search the comput- ers seized and even objected to police storing them because of the risk of an accidental breach of solicitor-client privilege. In April 2010, Ontario Su- perior Court Justice Patricia Hennessy appointed an associ- ate partner at Deloitte & Tou- che LLP to act as independent examiner in the case with the pornogra- phy. An out-of-town judge will hear the case, which is due to return to court on Nov. 17. According to Schabas, law enforcement organizations played an important role in the development of the guide- lines. Eleven police forces were among the 20 groups and indi- viduals that made submissions when the guidelines fi rst went out for public consultation in 2008. Th e guidelines actually have their roots even further back in the 2002 decision of the Su- preme Court of Canada in La- vallee Rackel & Heintz v. Can- ada (Attorney General). Th at decision struck down s. 488.1 of the Criminal Code that governed law offi ce searches. Th e majority of the court found that the section was unconstitutional because it caused "more than minimal impairment to solicitor-client privilege" and allowed for po- tential breaches of the privilege "without the client's knowl- edge, let alone consent." In 2004, the Federation of Law Societies of Canada came up with its own protocol for law offi ce searches. Th e LSUC used that as the basis for its own version. "We decided, based on our experience and cases that the law society has intervened in, that our own guidelines should be developed," Schabas said. Th e guidelines apply to law- yers only, Schabas explained, as "the law is not yet settled on the issue of privilege with re- spect to paralegals." LT CANADIAN LAW LIST 2011 YOUR INSTANT CONNECTION TO CANADA'S LEGAL NETWORK Inside you will find: an up-to-date alphabetical listing • • • of more than 58,000 barristers, solicitors and Quebec notaries, corporate counsel, law firms and judges in Canada; contact information for the Supreme Court of Canada, the Federal Court of Canada, Federal Cabinet Ministers, departments, boards, commissions and Crown corporations; legal and government contact information related to each province for the Courts of Appeal, Supreme Courts, County and District Courts, Provincial Courts, law societies, law schools, Legal Aid, and other law- related offices of importance. 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