On April 20th, the Ontario Superior Court of Justice ordered a number of computers and hard drives that had been seized from a lawyer as part of a child pornography investigation to be stored by a neutral examiner.
The devices were seized, immediately sealed and stored by the local police. Presumably, they all contained solicitor-client communications belonging to the lawyers’ clients. The Attorney General and the Law Society agreed to a protocol that involved retaining a neutral examiner to image hard drives and use a non-manual review process to look for and extract any images of child pornography. They did not, however, agree on where the drives and images would be stored.
The Law Society argued that the risk of an inadvertent security breach at the police station required that the devices be stored either at the Court or by the neutral expert. It argued that public confidence in the administration of justice would be compromised if privilege holders learned that communications related to their criminal defence were in the care and the control of the police.
Though she held that the risk of a breach of privilege was minimal, Justice Hennessy nonetheless ordered the devices to be stored by the neutral. She said:
This Court has a duty to ensure that all safeguards are put in place to avoid completely or reduce as completely as possible, any risk of a breach of solicitor-client privilege. This duty is particularly onerous in this situation, where any breach of the privilege would put the privileged material in the hands of the police who are adverse in interest to the privilege holders. This is not the case of a generic protection fo privilege against any disclosure to an uninterested person. The consequences of a breach of the solicitor-client privilege in this case go to fundamental principles. At this early stage of the proceedings, the Law Society does not have to show that there is a probability f a breach of the privilege if the seized devices are stored with the Timmins Police. We are in a preventative situation now. Fortunately, we are not dealing reactively to an allegation of an inadvertent breach.
According to Justice Hennessy, the Attorney General, though objecting the Law Society’s position, did not identify any specific concerns with storage at the neutral’s facility. She also noted that her order was based on special circumstances, a likely reference to the fact that the police investigation did not require an examination of any solicitor-client communications.