SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CR-11/17487
DATE: 20130201

RE: R. v. Bradley Sloan

BEFORE: Ellies, J.

COUNSEL:
Counsel, for the Applicant (Crown), Allison Dellandrea

Counsel, for the Accused, Brian G. Greenspan

Counsel, for the Law Society of Upper Canada, Scott K. Fenton

Referee, Joseph Di Luca

HEARD: February 1, 2013

ENDORSEMENT

[1] I have reviewed the Application Record filed by the Crown relating to the forfeiture of the Seized Devices, including the Supplementary Notice of Application, the draft Order, the Consents and the other Appendices.

[2] I am satisfied that the proposed draft Order should issue, with two small changes. In my opinion, the report referred to in paragraph 12 of the draft Order should include information as to the manner in which the Seized Devices and EnCase images were destroyed and the said report should be made to this Court in addition to the parties presently included in the paragraph.

[3] As Hennessey J. wrote in her reasons of April 20, 2010 (at paragraph 27), the court retains control over the entire process of unsealing material seized from a law office or subject to solicitor-client privilege. In my opinion, that includes the final step of the process, namely the destruction of the seized material. Therefore, any report concerning the destruction of such material should also be to the court.

[4] In her reasons, Hennessey J. also made reference to the need for public confidence in the fairness of the criminal justice system and the efforts made by that system to protect solicitor-client privilege (see paragraph 7, in which she refers to Lavallée, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61, [2002] 3 S.C.R. 209). In my view, information concerning the manner in which the seized materials were destroyed, rather than a conclusory statement to that effect, would serve to enhance that confidence.

[5] Given the consent basis on which the Application was filed, none of the affected parties were provided with an opportunity to make submissions regarding the changes I have proposed. Therefore, should any of the affected parties which to do so, they shall serve and file written submissions limited to 10 pages, excluding authorities, on the following basis:

a. On behalf of the Attorney General, within 20 days of the date of this endorsement.

b. On behalf of the Law Society, within 10 days thereafter.

c. On behalf of the Referee, within 10 days thereafter.

d. On behalf of the Accused, within 10 days thereafter.

e. Any reply to the submissions referred to above, limited to 5 pages, excluding authorities, within 10 days thereafter.

[6] In the event that the parties agree on the proposed changes, an Order incorporating the same may be submitted for my signature at any time.

Ellies, J.

Date: February 1, 2013