Timmins, Ont., police officers faced an unprecedented situation recently when they found themselves investigating a local lawyer suspected of possessing child pornography.
“We are quite aware there are different guidelines for searching a lawyer’s offices, so we did consult with the Crown beforehand to make sure we were complying before we obtained and executed the search warrants,” says Insp. Michael McGinn of the Timmins Police Service.
As a result of concerns over solicitor-client privilege, the lawyer, 61-year-old Brad Sloan, has had his trial over a child-pornography possession charge delayed while an independent examiner completes a forensic search of computers seized by police in the case.
Timmins police executed search warrants on Sloan’s home and office back in November, but the computers and hard drives seized in the searches remained stored and sealed while the Law Society of Upper Canada and the Ministry of the Attorney General hammered out a protocol for a forensic examination of them.
The law society was worried Sloan’s clients’ solicitor-client privilege would be at risk if police were allowed to conduct the search because of the number of client files stored on his
computer. It even objected to police holding the seized computers for fear of an accidental breach of privilege.
The four-week examination has now begun, allowing for a planned resumption of the matter next month.
The search will take place under special circumstances, however, to address the privilege concerns.
On April 20, Superior Court Justice Patricia Hennessy appointed an associate partner at Deloitte and Touche LLP to act as an independent examiner in the case, separating privileged files and isolating any potentially offensive materials.
He will search the computer for images according to the same practices used by the Ontario Provincial Police in similar matters and provide a report of his findings to the court.
Deloitte will hold the computers and hard drives securely in storage in Toronto, making them available only to the examiner. Joseph Di Luca, a criminal defence lawyer in Toronto, will act as an independent referee to assist the examiner in deciding what materials are privileged.
Although police will be able to monitor the imaging and transfer of the computers, “at no time shall any member of the Timmins Police Service be permitted to view the contents of the seized devices,” Hennessy wrote in her order.
The law society had argued that leaving the computers in the hands of police could erode public confidence in the fairness of the criminal justice system and asked the court to act as custodian.
Timmins police had the items stored under three levels of seals or locks in a room, with a civilian employee devoted entirely to guarding them. Counsel for the ministry suggested the devices should stay where they were because police wouldn’t deliberately interfere with them.
Despite the low risk of an accidental breach, Hennessy said the consequences of one happening were huge, especially while they remained with the police, whose interests are adverse to many of Sloan’s clients.
“Any number of ongoing prosecutions would be at risk if there was any finding whatsoever of the slightest breach of the solicitor-client privilege, no matter how inadvertent,” she wrote. “We are in a preventative situation now. Fortunately, we are not dealing reactively to an allegation of an inadvertent breach.”
Not satisfied with security at the court, Hennessy accepted the offer from the examiner to hold the computers with Deloitte in Toronto.
Counsel for the ministry indicated they agreed to the terms in the order that went beyond the necessary precautions for the protection of privilege in order to advance the prosecution. In her reasons for the order, Hennessy noted the co-operative attitude of police in the case.
“From the moment when the police learned of the possibility of the offensive material on the subject computers, they have demonstrated their keen appreciation of this privilege,” she wrote.
For his part, McGinn says the police force had never faced a similar situation before but notes officers were quick to tread very carefully with the case. As a result, police laid the charge without actually examining the computers.
According to McGinn, officers acted on information from a member of the public to obtain the search warrants. At the suggestion of police, someone from the LSUC was present while officers executed the warrants to maximize the protection of solicitor-client privilege.
But McGinn says sealing and storing computers is normal practice for police in Timmins because they don’t have the capability to do a forensic examination on site. “For computer searches, we usually seal the computers so that the evidence remains in tact until we can get them to the Ontario Provincial Police, who does our forensic analysis.”
The trial is now scheduled to resume on June 9. Because of Sloan’s frequent involvement in the Timmins court, a judge from out of town will preside over the trial, and Allison Dellandrea, a Crown counsel from Toronto, will act as prosecutor.
