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REGULATION OF LEGAL PROFESSION - Law societies and governing bodies - Disciplinary proceedings

Tuesday, August 22, 2017 @ 8:31 AM  

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Appeal by Singh from a decision of a chambers judge finding that s. 55 of the Law Society Act did not infringe s. 8 of the Canadian Charter of Rights and Freedoms (Charter). Cross-appeal by the Law Society of Alberta (Law Society) from the chambers judge’s decision to impose conditions precluding the review or use of Singh’s records without further court authorization following the conclusion of the appellant’s criminal proceedings. The appellant, a solicitor, was investigated by the Law Society after he was charged with drug trafficking. The appellant allegedly transported methamphetamines to a client in prison. Relying on s. 55(2)(b) of the Legal Profession Act (Act), the Law Society investigator requested the appellant to produce or provide access to the records related to the appellant’s desktop computers, laptops, iPads, tablets, cellular telephones or other electronic storage or communication devices used or accessed by the appellant. The appellant refused the investigator’s request on the basis that s. 55 of the Act infringed his s. 8 Charter rights. The chambers judge found the provision to be constitutional, as the regulatory scheme involved carried with it a low expectation of privacy. He concluded that searches and seizures which might run afoul of s. 8 of the Charter when conducted in the context of a criminal investigation might not do so in the context of a regulatory investigation. He concluded that compliance with requests for information from the Law Society, and the loss of privacy that went with that, was part and parcel of the privilege of practicing law. Accordingly, the appellant was ordered to produce the requested information, but the chambers judge imposed conditions precluding the respondent from reviewing or otherwise using the information following the conclusion of the appellant's criminal proceedings without further order of the court.

HELD: Appeal and cross-appeal dismissed. It was not necessary for the Court to decide whether s. 55 of the Act breached s. 8 of the Charter for the purposes of the appeal. Nor was it necessary for the Court to determine the applicable standard required under s. 55(3) of the Act in the circumstances of the case. Relevance, objectively determined having regard to the circumstances and statutory context, was the overarching standard and was satisfied on the facts of the case. The seizure was reasonable in the circumstances. The fact that the investigator did not use technical and legal terms of art such as “reasonable suspicion” or “reasonable and probable grounds” in seeking production was not determinative of the result. When viewed holistically and in context of the regulatory regime, the information deposed in the investigator’s affidavit before the chambers judge supported the order. As the appellant’s criminal proceedings had been concluded, the cross-appeal was now moot.

Law Society of Alberta v. Sidhu, [2017] A.J. No. 691, Alberta Court of Appeal, M.S. Paperny, J.D.B. McDonald and M.G. Crighton JJ.A., July 4, 2017. Digest No. TLD-August212017005