On computer search and seizure, for the record — December 19, 2011
As the result of a recent news article on the child pornography trial of Timmins lawyer Brad Sloan, the Law Society would like to clarify our position in regard to the seizure of Mr. Sloan's hard drive.
Contrary to what was implied by the article, we did not oppose the seizure for the purpose of searching the hard drive for pornographic or other illicit material. The Law Society's actions were solely to protect the confidential client information contained in Mr. Sloan's files.
Privileged client information
Solicitor-client privilege is a fundamental principle that protects a client's information in any transaction with his or her lawyer. The Law Society acted to insure that the prosecution could proceed without endangering any privileged information belonging to Mr. Sloan's clients.
At some point in time a friend, a family member, you or I will need to consult with a lawyer about a legal matter. Each one of us is able to consult with this lawyer secure in the knowledge that what is shared; what takes place between the lawyer and us is confidential. Solicitor-client privilege attaches to these confidences and the law states that solicitor-client privilege is to be given maximum protection. In Canada, solicitor-client privilege is one of our constitutional rights that is protected under the Canadian Charter of Rights and Freedoms. It is an important right because it is to facilitate full and frank communications between a client and lawyer in seeking and giving legal advice.
Solicitor-client privilege is about a battered spouse being able to speak with a lawyer about family law matters secure in the knowledge that the battering spouse cannot find out what is being said and what safety plans are being put into place. It is about an elderly father making end of life decisions with his lawyer safe from the prying eyes of inquisitive off-spring. It is about a neighbour’s ability to speak with a lawyer about an employment problem without the employer finding out. And it is about a Police Officer, who is subject of a Police Act investigation, to speak with a lawyer to find out what his or her legal obligations and rights are without fear that a superior officer will become privy to the communications.
Protecting the public
As a lawyer, Mr. Sloan has a relationship of solicitor to client with numerous, possibly hundreds of people. When Mr. Sloan’s law office computers were seized, the Police also seized the solicitor-client privileged information belonging to those countless clients stored in those computers; individuals who were not the target of the child pornography investigation.
Search by the Police of Mr. Sloan’s law office computers would have resulted in the breach of solicitor-client privilege and the violation of the constitutional rights of these people.
Police search of Mr. Sloan’s law office computers could have lead to numerous applications by his clients to; stay charges in ongoing criminal prosecutions, overturn convictions made in completed criminal proceedings and perhaps may even have generated Charter challenges in the criminal proceedings that currently Mr. Sloan is the subject of.
The Law Society wanted the hard drives of Mr. Sloan’s law office computers to be searched for pornographic or other illicit material in a manner that would maximally protect the solicitor-client privilege of Mr. Sloan’s clients and that would give to Police any evidence of criminality stored within them. The Law Society wanted these searches to take place in a manner that would not jeopardize current or completed criminal prosecutions.
Independent forensic examination
Consequently, the Law Society recommended to Justice Hennessy, that the Court appoint an independent expert computer forensic examiner to take custody of and to conduct the searches of Mr. Sloan’s law office computers. The Court appointed Mr. Corey Fotheringham as the independent computer forensic examiner to conduct the necessary search.
The Law Society recommended to Justice Hennessy that the Court appoint a lawyer independent of the Crown, Police and Mr. Sloan to act as Referee. The lawyer, Mr. Joseph DiLuca, was appointed by the Court to act as Referee to assist with the search of the law office computers, to assist with issues pertaining to solicitor-client privilege and to ensure that the solicitor-client privileged information stored within the law office computers was maximally protected.
On December 8, 2011 Mr. Sloan plead guilty to possession and distribution of child pornography, and he is to be sentenced on January 11, 2012. Mr. Sloan’s criminal behaviour was detected, solicitor-client privilege was protected and convictions were entered on charges of possession and distribution of child pornography which will lead to the greater protection of children.
Mr. Sloan’s law practice is restricted. Details are available in the Law Society's Lawyer and Paralegal Directory.