Court File and Parties
ONTARIO SUPERIOR COURT OF JUSTICE
RE: THE LAW SOCIETY OF ONTARIO, Applicant
-and-
JAMES DOUGLAS STEWART BOWIE, Respondent
BEFORE: FL Myers J
COUNSEL: Chad Skinner, for the applicant
No one, for the respondent
HEARD: December 2, 2022
ENDORSEMENT
[1]
Overview
The Law Society moves without notice for an order authorizing search and seizure pursuant to s. 49.10 of the Law Society Act, R.S.O. 1990, c. L.8. It seeks to search for and seize the respondent’s smartphones, computers, and other electronic devices to obtain access to and copy his social media communications.
2For the reasons that follow, I signed the order after the hearing.
3The relevant parts of s. 49.10 provide:
Order for search and seizure
49.10 (1) On application by the Society, the Superior Court of Justice may make an order under subsection (2) if the court is satisfied that there are reasonable grounds for believing,
(a) that one of the following circumstances exists:
(i) a review of a licensee’s professional business under section 42 is authorized,
(ii) an investigation into a licensee’s conduct under subsection 49.3 (1) is authorized, or
(iii) a licensee whose capacity is being investigated under subsection 49.3 (3) may be, or may have been, incapacitated;
(b) that there are documents or other things that relate to the matters under review or investigation in a building, dwelling or other premises specified in the application or in a vehicle or other place specified in the application, whether the building, dwelling, premises, vehicle or place is under the control of the licensee or another person; and
(c) that an order under subsection (2) is necessary,
(i) because of urgency,
(ii) because use of the authority in subsection 42 (2) or 49.3 (2) or (4) is not possible, is not likely to be effective or has been ineffective, or
(iii) because subsection 42 (2) or 49.3 (2) or (4) does not authorize entry into the building, dwelling or other premises specified in the application or the vehicle or other place specified in the application.
Contents of order
(2) The order referred to in subsection (1) may authorize the person conducting the investigation or review, or any police officer or other person acting on the direction of the person conducting the investigation or review,
(a) to enter, by force if necessary, any building, dwelling or other premises specified in the order or any vehicle or other place specified in the order, whether the building, dwelling, premises, vehicle or place is under the control of the licensee or another person;
(b) to search the building, dwelling, premises, vehicle or place;
(c) to open, by force if necessary, any safety deposit box or other receptacle; and
(d) to seize and remove any documents or other things that relate to the matters under investigation or review.
Terms and conditions
(3) An order under subsection (2) may include such terms and conditions as the court considers appropriate.
Assistance of police
(4) An order under subsection (2) may require a police officer to accompany the person conducting the investigation or review in the execution of the order.
Application without notice
(5) An application for an order under subsection (2) may be made without notice.
[4]
Background and Investigation
The Law Society is investigating allegations of sexual harassment against the respondent. What started with one complaint has now expanded to a broader investigation. The allegations are also in the public press and are very broad and very serious.
5The Law Society’s evidence is that the respondent has communicated elements of his misconduct by social media. He is alleged to use the Snapchat application knowing that it does not keep a permanent record of communications sent or received. But he is also alleged to have sent explicit pictures and other inappropriate communications through other types of electronic messaging social media such as the Facebook Messenger application.
6A complainant has presented her communications received from the respondent. The Law Society seeks to find proof that the communications were indeed sent by the respondent. In addition, it seeks evidence concerning other potential victims some of whom have been coming forward recently. I am satisfied that the respondent’s devices and social media accounts likely contain evidence that relates to the initial and broadened matters under investigation.
7The Law Society has asked the respondent to surrender his electronic devices for copying so it can (i) obtain evidence from the devices, and (ii) access his social media accounts. He refused. He also did not allow the investigator to conduct a search for devices because he was not in his principal office and the statute does not provide the Law Society a right to search elsewhere without obtaining an order of the court.
8There is evidence before the court that the respondent carries on his law practice from his home and sometimes in vehicles. Electronic devices are likely to be found in both locations as personal devices are typically kept close by the owner. Larger devices are kept where one works or accesses the internet otherwise.
[9]
Grounds for Search and Seizure
I agree with the Law Society that all three grounds under s. 49.10 (c) exist. There is urgency to catch social media posts before they expire. Although the respondent knows the Law Society wants his devices, he also knows that Snapchat posts disappear. He does not know the scope of its evidence to date or the scope of the investigatory authority being sought. I am well satisfied that it is urgent to try to catch any recent posts before they expire. In any event, the Law Society’s other powers are insufficient to obtain the respondent’s devices. They searched his principal office under s. 49.3 (2). The receptionist told the investigator that he only uses the space for meetings and he works from home most of the time. That accords with the Law Society’s surveillance evidence as well. The Law Society lacks the authority to search the respondent’s home and car. It made demand for his devices and the respondent refused. There is also evidence that the respondent has not cooperated with the Law Society to this point and in prior investigations (resulting in him being charged with failure to cooperate).
10The allegations against the respondent are of a predatory nature. Moreover, they are alleged to be an open secret in the legal community in Ottawa if not beyond.
[11]
Terms of the Order
The Law Society has made arrangements for an independent third-party to hold and image the information on the respondent’s devices to protect privilege and his privacy. It seeks authority to require production of information from social media and telephone service providers. In my view, these requests fall within the scope of the statutory authority and are supported by reasonable grounds.
[12]
Sealing Order
The Law Society asks to seal the file. The Law Society seeks to protect the integrity of its investigation. It seeks to protect the scope of the relief sought from the respondent at least until it has executed its searches. It seeks to protect personal information concerning the complainant. I am satisfied that the public interest in fostering investigation of lawyer wrongdoing outweighs the open court principle at least in the short run. I leave for another day whether that remains the case once the search has been executed.
[13]
Venue and Publication
This matter was heard in Toronto because the statute allows it to be brought without notice to the respondent and the Law Society’s head office is here. Anyone who may wish to take further steps in this proceeding should consider the desirability of transferring the proceeding to Ottawa.
14Finally, I advised Mr. Skinner that I would withhold publication of this endorsement for a brief period pending the execution of the applicant’s searches. I request that he let my office know in the next few weeks when the applicant is content with the publication of this endorsement.
FL Myers J
Date: December 16, 2022