Canadian Lawyer

of Henein Hutchison LLP in Toronto. "What really comes out of Telus is yet another example of the need for legislation to overhaul the judicial pre-authorization regime established under the code," says Hutchison, author of Search and Seizure Law in Canada. "The technology has evolved — and continues to evolve — in ways that leave investigators, lawyers, and courts trying to fit practices into legislative schemes drafted at a time when phones had rotary dials," he notes. Technology and the widespread use of texts also means a broad production order for an individual's electronic communications over a certain time period may also capture messages involving an innocent party or between a lawyer and client. That is exactly what happened to Toronto defence lawyer William Jaksa when he was defending a client under investigation by the Ontario Securities Commission. In the course of reviewing disclosure provided by the OSC, Jaksa noticed some of the seized texts included messages between him and his client. "The messages were benign. But they had my subscriber information and also the timing of the communications," says Jaksa. Also included in the disclosure were some text messages from another lawyer, who was representing the client in a separate criminal proceeding. Jaksa says the OSC never alerted him to the fact it had solicitor-client communications in its possession and he only realized this after going through the disclosure materials. As a result of what happened in this case, "I don't trust communicating with my clients electronically," says Jaksa. Broad requests, which may capture texts between lawyers and clients, could also raise liability issues for counsel. "Texts are short messages. They are open to misinterpretation," Jaksa states. The OSC is able to obtain past texts by issuing a summons to the service provider, under its powers in the provincial Securities Act. It says if it becomes aware of solicitor-client communications in its possession, that information would immediately be segregated and sealed to protect the privilege. When texts are obtained, the OSC uses specific search tools to look for only relevant communications, so it may inadvertently have texts between a lawyer and a client it is not aware of, because it was never actually reviewed by the regulator. While there is the potential for abuse if a request for a production order is too broad, Penney believes the existing legal ntitled-1 1 framework offers sufficient privacy protections as long as it is applied properly. "We don't necessarily need to amend the law. The means are available to ensure a search is as least intrusive as possible. Issuing judges can impose conditions," says the criminal law professor. "In practice though, there may need to be a conceptual shift for lawyers and judges to impose these limitations." CLE 8th Bi-Annual Symposium on Search and Seizure Law in Canada January 24, 2014 89 Chestnut Street, Conference Centre, Toronto, Ontario Join a faculty of leading experts for incisive analysis and lively discussion of current, critical issues, including: Charter Securities Act Keynote Luncheon Address The Hon. Justice Michael Code, "A Journey Through 30 Years of Section 8 Litigation" Chairs: Scott C. Hutchison, Scott K. Fenton, Registration Fee: $525 plus HST Group discount: Register 4 members of the same organization at the same time, and receive 25% off each registration fee. Criminal Lawyers Association (CLA) members receive 25% off the regular rate. To Register: Or E-mail: Or Call: Osgoode Professional Development, 1 Dundas Street West, Suite 2600, Toronto Priority Service Code: 13-50CL www.CANADIAN L a w ye r m a g . c o m November/December 2013 49 13-10-31 9:15 AM

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