Law Times

www.lawtimesnews.com Page 12 January 28, 2008 / Law Times Law office search protocol still in development D iscussions are continuing between the Law Society of Upper Canada and the Federation of Law Societies of Canada in the hope of coming to a consensus on a protocol for law office searches in Ontario and nationally. Introduced following the 2002 Supreme Court of Canada deci- sion in R. v Lavallee — which struck down s. 488(1) of the Criminal Code, a section that detailed the procedures that police were required to follow when executing a search warrant on a lawyer's office — the Federation of Law Societies' Protocol for Law Office Searches was to be used for the purposes of negotiation with the federal and provincial attor- neys general of Canada, according to the Canadian Bar Association. As the government has not yet amended that section of the Criminal Code, the 2004 pro- tocol, while not official, mirrors the principles that in Lavallee that govern the legality of search- es of law offices, according to Convocation. It is an information source, both for law societies and for the profession at large, on the procedures that should be fol- lowed during such a search. The protocol applies to cases where the lawyer whose office will be searched is the target of the investigation, where docu- ments are not named in the search warrant, or where the lawyer is not present when the search warrant to produce the documents is executed. The procedure for carrying out the search when there is a warrant includes making every effort to contact all clients of the lawyer whose solicitor-client privilege may be affected by the search warrant, applying to the Superior Court for an indepen- dent referee to search for and seize the documents while main- taining their confidentiality, and delivering the documents to the court, says the protocol. However, according to a report to Convocation by the Professional Regulation Committee, while the protocol has generally been accepted by attorney general offices and law enforcement offi- cials in other provinces and ter- ritories, it is unevenly applied in Ontario, with respect to warrants and search and seizure. "Some law enforcement offi- cials are willing to work within the ambit of the protocol, and others want the law society to send a representative whenever a search warrant is executed," says the report. To address these issues, Convocation approved consul- tations with stakeholders such as the Ontario Bar Association, County District Law Presidents' Association, and Advocate's Society, as well as with the Ministry of the Attorney General. The consultations were held last summer. In its report on the federation's annual conference in November, Convocation noted that the Department of Justice is consid- ering the protocol, but that it has not been "formally accepted" by all provincial attorneys gen- eral, and that "further discussions between the federal Department of Justice and its provincial coun- terparts should take place." Derek Freeman, a Toronto lawyer who represented the OBA during meetings last summer with the law society and other stake- holders, says that from a law- yer's perspective there are several aspects to the legislation, such as if a lawyer were in a situation where he or she was being investigated, where they would be well pro- tected in the sense that a client's privileged materials would not be looked at by anyone without there likely being a referee in place. Lawyer Christopher Wayland, who attended the meetings on behalf of the Toronto Lawyers Association, says that there was "obviously a consensus that there needs to be some sort of protocol to govern this." At the time, some of the issues that came up included the ques- tion of whether the independent referee would be conducting the search and seizure or taking on more of an oversight role. Wayland notes it is impor- tant that the referee oversee but not carry out the search itself. The protocol is unlikely to be accepted by law enforcement if the referee is the one conducting the search, he says. Other issues raised included the procedure to deal with elec- tronic evidence and the concept of appointed referees, as opposed to those selected by parties. "I think the consensus . . . with the protocol was the core of the protocol was good; it was just a matter of clarifying these points," says Wayland. Freeman notes that since the Lavallee decision there is maybe one such search a year in Ontario. "Because it's such a rare item nowadays, given Lavallee, . . . the OBA doesn't have a formal position other than to say it makes sense, what the law soci- ety's doing is appropriate, and we commend the law society for the work that it's doing to try to reach a protocol that's nation- wide," he says. "I think the next probable best step is for the law society to come back to us and say, 'Here's what the [the Ontario attorney gen- eral] suggests, here's where the Federation of Law Societies is at, and, frankly, the federal govern- ment has now reintroduced s. 488(1) . . . but that's the best case scenario,'" he says. "I think it's a matter of grave concern more frequently than once a year, but it doesn't get raised more than once a year . . . because the law society is acting very well in the interests of the public and fulfilling its mandate," he says. According to the law society, discussions are underway with the working group of the federation regarding potential further modi- fications to the national protocol model. Once these discussions are complete, the LSUC will discuss the model with any interested parties in Ontario. Late last year, the protocol was approved in principle by Convocation as guidance to both the law society and the profession, so that the law society could con- tinue to refine it and build flex- ibility into the protocol to "adapt it to Ontario's current environ- ment." According to Convocation's professional regulation commit- tee, discussions between the law society and the ministry should continue. Meanwhile, the ministry has provided some input on the feder- ation's draft protocol and expects to be giving additional input in the near future, says spokesman Brendan Crawley. "In the end, further discus- sions are necessary . . . we're asking . . . approval in prin- ciple, with the understanding that there may have to be other changes, hopefully of a minor sort, as the discussions con- tinue on this subject matter, and as we find the forum which is suitable, hopefully, for use in Ontario," professional regula- tion committee chair Clayton Ruby told Convocation in November. 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