COURT FILE NO.: CR-22-37 DATE: 2023-03-03

ONTARIO SUPERIOR COURT OF JUSTICE

IN THE MATTER OF AN APPOINTMENT OF A COMPUTER FORENSIC ANALYST

COUNSEL FOR THE APPLICANTS: Brian White for the Ontario Ministry of the Attorney General, and Wendy Houtmeyers, Sr. Crown counsel, Agency Provision Unit.

HEARD: December 2, 2022, and January 5, 12, and 20, 2023

CAMPBELL J.

INTRODUCTION

[1] This application arises out of unusual circumstances. It is a joint application by counsel for the Ontario Ministry of the Attorney General (“MAG”) and counsel for the Public Prosecution Services of Canada (“PPSC”). Both applicants seek the appointment of a computer forensic analyst to seize and seal inadvertently obtained audio-video recordings made by the Woodstock Police Services (“WPS”). The recordings relate to privileged solicitor-client communications.

[2] The grounds for the application are set forth in the application dated November 23, 2022. To this point, only the applicants have attended on the dates the matter was returnable in court. The applicants advised local defence counsel by email, including the president of the Criminal Lawyers Association (Oxford County), and the president of the Criminal Lawyers Association (Middlesex County), of the inadvertent recordings. The application was served on the general counsel for the Law Society of Ontario.

BACKGROUND

[3] Between 2017 and 2018, the WPS renovated their headquarters. The renovation of various locations in the police headquarters included the installation of internal, closed circuit television cameras (“CCTV”) that record both audio and video.

[4] With the onset of the Covid-19 pandemic in mid-March 2020, the courts began to use virtual hearings, including audio conferences by telephone and audio-video conferences by Zoom. On February 1, 2021, Zoom courts were utilized to deal with persons arrested over night on weekdays, weekends, and statutory holidays.

[5] For matter involving WPS, accused persons would appear from police headquarters. The room used for the appearances was a room referred to as the fingerprint room. That room was equipped with CCTV. The CCTV was there to record the taking of fingerprints, including any interaction between the police and an accused person during the process.

[6] It appears that the recordings of this room were not regularly reviewed by officers or staff at the WPS. The recordings were only accessed when there was an investigative need or to satisfy a disclosure request.

[7] On or about October 6, 2022, a civilian member of the WPS was monitoring all security CCTV for the building. At some point, the person could hear bail court proceedings on Zoom. Upon further inspection, it was learned that what the person was hearing originated from the fingerprint room, utilized for Zoom bail court proceedings. Upon recognizing the potential issue, the staff member reported the apparent inadvertent recording of virtual court proceedings to senior WPS staff.

[8] On October 7, 2022, an inspector at the WPS listened to a recording taken from a camera in the fingerprint room set up for virtual court proceedings. It was confirmed that the audio-video recording of the Zoom court proceeding was current. The inspector was careful to listen only to the court proceedings and listened only long enough to confirm the audio and video was being recorded.

[9] During further review, the WPS determined that the inadvertent recording of the proceeding meant that when an accused was placed in a “break out” room to have privileged communication with their counsel, that interaction was recorded. The WPS immediately stopped using the “break out” room function during virtual court appearances. Thereafter, to facilitate discussions with counsel, an accused person was taken to a private room where there was no recording. Counsel called into a specific extension for the phone located in the room, ensuring privacy.

[10] The WPS have preserved and locked down all CCTV recordings made between February 1, 2021 and October 7, 2022. The WPS waits for further direction from the court with respect to these recordings.

[11] On October 10, 2022, the Woodstock Crown Attorney’s Office sent an email to local defence counsel, including the president of the Criminal Lawyers Association (Oxford County) and the president of the Criminal Lawyers Association (Middlesex County), advising them of the inadvertent video recording of the privileged solicitor-client communications.

[12] Through continuing cooperation and assistance with the WPS, the Woodstock Crown Attorney’s Office are making efforts to identify the accused persons who may have had their privileged solicitor-client communications recorded. The intent is to notify parties and their counsel of the potential recording.

ISSUES

[13] I find the issues to be determined are:

a. Does this court have jurisdiction to intervene in these circumstances? b. Should the requested order be made? c. If the requested should not be made, should some other order be made?

APPLICANT’S POSITION

[14] The position of the applicants is succinctly stated in their application. They submit that the court has the authority to make the requested order as part of the court’s inherent jurisdiction. Further, the order is the proper one to be made to ensure protection of any affected accused’s Charter rights.

[15] The applicants argue that the circumstances were analogous to a police search of a law office pursuant to a search warrant. Therefore, any court order must be designed to maximize the protection of privilege. Privilege holders ought to be given notice of seizure of the recordings, and the court must rule on how privileged communications are to be made available to the affected parties.

[16] The applicants further argue that to assist the court, an independent forensic computer analyst ought to be appointed. That analyst would advise the court and assist in capturing and preserving the advertent recordings. Any order appointing the analyst should include terms to protect the solicitor-client privilege.

ANALYSIS

Does the court have jurisdiction to intervene in these circumstances?

[17] There is no question that judges have the ability to control the court process. Section 11(2) of the Courts of Justice Act, R.S.O. 1990 c. C. 43 (“CJA”) provides that the Superior Courts of Justice retains all the jurisdiction, power, and authority historically exercised by courts of common law and equity in England and Ontario. Canada’s provincial Superior Courts are descendants of the Royal Courts of Justice and have inherited the powers and jurisdiction exercised by Superior District or County courts at the time of confederation: see Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3 (“Ontario v. Criminal Lawyers’”).

[18] The essential nature and powers of the Superior Courts are constitutionally protected by s. 96 of the Constitution Act, 1867. That core or inherent jurisdiction is integral to the court’s operation.

[19] In MacMillan Bloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725, 130 D.L.R. (4th) 385, the majority of the Court described the powers at the core of the Superior Court’s jurisdiction as comprising “those powers which are essential to the administration of justice and made against the rule of law.” The core is a very narrow one, which includes only critically important jurisdictions which are essential to the existence of a Superior Court of inherent jurisdiction and to the preservation of its foundational rule: see Reference re Amendments to the Residential Tenancy Act (N.S.), [1996] 1 S.C.R. 186, 131 D.L.R. (4th) 609.

[20] In R. v. Caron, 2011 SCC 5, [2011] 1 S.C.R. 78, Binnie J. writing for the Court stated at para. 24,

The inherent jurisdiction of the provincial superior courts, is broadly defined as “a residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so. These powers are derived “not from any statute or rule of law, but from the very nature of the court as a superior court of law” to enable “the judiciary to uphold, to protect and to fulfil the judicial function of administering justice according to law in a regular, orderly and effective manner.” [Citations omitted.]

[21] In Ontario v. Criminal Lawyers’, the court noted that with the advent of the Charter, the Superior Court’s inherent jurisdiction must also support their independence and safeguarding the values and principles of the Charter that has been entrenched in the Constitution. It includes those powers required to ensure the courts fulfil the judicial function of administering justice according to law and in a regular, orderly, and effective manner.

[22] The concept of inherent jurisdiction was considered in Re. Regina. and Unnamed Person (1985), 22 C.C.C. (3d) 284, 10 O.A.C. 305 (Ont. C.A.), where Zuber J.A. stated at p. 286:

The term ‘inherent jurisdiction’ is one that is commonly and not always accurately used when arguments are made with respect to the jurisdictional basis upon which a court is asked to make a particular order. The inherent jurisdiction of a superior court is derived not from any statute or rule of lab but from the very nature of the court as a superior court (see, generally, I.H. Jacob, The Inherent Jurisdiction of the Court, 1970, C. Leg. Probs. 23). Utilizing this power, superior courts, to maintain their authority and to prevent their processes from being obstructed or abused, have amongst other things punished for contempt of court, stayed matters that are frivolous and vexatious and regulated their own process. The limits of this power are difficult to define with precision but cannot extend to the creation of a new rule of substantive law. [Emphasis added.]

[23] The Court in Ontario v. Criminal Lawyers’ also found that court decisions can have ancillary financial consequences. Those powers may have incidental consequences for the public purse. In R. v. Law Office of Simon Rosenfeld (“Rosenfeld”), Nordheimer J. ordered a court-appointed referee to review seized documents. All the costs of the seizure were to be born by the Crown.

[24] Privacy between client and legal advisor is protected by ss. 7 and 8 of the Charter: see R. v. Lavallee, 2002 SCC 61, [2002] 3 S.C.R. 209 (“Lavallee”). Lavallee dealt with a police search of a law office. Nonetheless, as argued by the applicants, the same protections are applicable to the matter currently before the court.

[25] The authorities I have reviewed make it clear that the communication between a detained person and their counsel, if it is to occur, must be in private. Communication which is not private is not fulsome, and any system that prevents privacy may have a chilling effect on the process. The inadvertent audio-video recordings of privileged communications would appear to be on their face, a violation of an accused’s person s. 10(b) Charter rights. They were private communications, quite likely involving the retaining of or the instructing of counsel.

[26] In Lavallee the court stated at para. 41,

In cases where it would not be feasible to notify the potential privilege holders that they need to assert their privilege in order to bar an intrusion by the state into the protected materials, at the very least independent legal intervention for instances in the form of notification involve the Law Society, would go a long way to afford the protected that is lacking under the present regime.

[27] It also appears that the recordings capture not only the breakout room conversations between counsel and client, but they also capture court proceedings. Such recording is contrary to s. 136 of the CJA.

[28] This situation is unique. It does not fit within the parameters of the cases cited by the applicant or by analogy to the direction in s. 488.1 of the Criminal Code, R.S.C., 1985, c. C-46. There is no ongoing prosecution. There is no information seized among which the Crown seeks to rely upon to forward a charge. Nonetheless, I conclude that this court does have jurisdiction to intervene in these circumstances. The court’s involvement is necessary to ensure the protection of accused person’s Charter rights.

Should this court make the requested order?

[29] Having concluded that the court has jurisdiction, I move to consider whether the court should make the requested order. The applicant seeks a court order appointing a specific forensic computer analyst to attend at WPS, access the necessary computer devices, and seize the inadvertently recorded conversations. Thereafter, the analyst would maintain secure custody of the recordings until a judge of this court directs further action.

[30] In my view, the requested order necessarily requires this court to become directly involved in instructing an analyst, including directions with respect to payment of those services. I would observe that the payment for those services is a matter this court has jurisdiction to order, ancillary to a finding that the court has jurisdiction to be involved.

[31] As stated by Nordheimer J. in Rosenfeld, given that it is the court’s responsibility to ensure a privilege claim is properly reviewed and evaluated, it is the court that must take responsibility for the process. However, in his decision, Nordheimer J. raised the question of whether the court must undertake the task itself, as generally would occur in an O’Connor application.

[32] At this point in time, the court is unable to identify those persons whose communications may have been recorded. To do so will necessarily involve an examination of the recordings. Any protocol for the storage of the seized material must be reliable and trustworthy. The public confidence in the administration of justice relies on the respect and protection of solicitor-client privilege.

[33] In my view, the order proposed by the applicants would likely require a judge to undertake the task of reviewing many recordings. A court could become deeply involved in the function of the analyst. This could lead to a prolonged and burdensome procedure, beyond the usual role of a judge. I conclude the requested order should not be made, but an alternative considered.

Should some other order be made?

[34] In my view, the court is entitled to appoint someone to perform the necessary review, including the appointment of a forensic computer analyst. Indeed, I conclude that a person other than a judge may well be in a better position to undertake a direct inquiry with the proposed analyst, including directing what work and how that work should be done. The individual appointed could also consider and propose a methodology for notification of individuals who might be affected and to oversee that notification process.

[35] As noted at para. 13 in Rosenfeld, “The court often refers matters to other individuals for them to take certain steps and make certain findings. The most obvious example is in the civil context where issues can be referred by a judge to another person for determination.”

[36] Rule 54.02(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 gives the court authority to direct a reference for the whole proceeding or to determine a specific issue. Such orders are appropriate where, “a prolonged examination of documents or an investigation is required that, in the opinion of the judge, cannot conveniently be made at trial.” Nordheimer J. found in Rosenfeld, there is no reason that this process ought not to be applied in the context of a criminal proceeding so long as the final determination of privilege remains with the court.

[37] I conclude that the necessary work ought to be undertaken by a referee who is a member of the Ontario Bar. That referee should work with a forensic computer analyst that he or she selects to segregate the court proceedings from the breakout conversations.

[38] Thus far, the Law Society of Ontario has not participated in this application. My concern is that likelihood of court proceedings being captured in the recordings has not received the attention it ought to. At this point, I do not find that the Law Society needs to be made a party to the proceeding. However, I conclude the Law Society should be required to attend on the next date this matter returns before me. The date of the next return will be set on March 8, 2023.

[39] In my view, it falls within the inherent jurisdiction of a Superior Court to undertake such a procedure, and the court has jurisdiction to make orders with respect to payment of the costs that flow from the implementation of such a procedure. Indeed, the issue of costs does not appear to be an issue before the applicants, as the draft order provided includes a provision that costs of the analyst be born by His Majesty the King in the right of Ontario.

CONCLUSION

[40] Therefore, I make the following orders:

a. A referee, who is a member of the Law Society of Ontario, shall be appointed within 30 days by the applicant. Upon the appointment of the referee the matter should be returned to this court at a date to be set by the trial coordinator for the court to approve the appointment of the referee. b. The referee shall select a forensic analyst who will provide him or her with the recordings. That selection of the analyst shall be in consultation with the applicants. The forensic analyst shall undertake the necessary work to capture and preserve the inadvertent recordings. c. The referee shall work with the analyst to separate solicitor client communications from general court recordings. d. The referee shall put counsel identified on any of the recordings of solicitor and client communications on notice and request their position. e. If counsel does not respond with the referee’s request for position within 30 days, or takes the position that the recordings ought to be destroyed, the recordings shall be destroyed. f. The court recordings shall be destroyed. g. Should the referee require any further direction with respect to their appointment or authority he or she may return the matter before me on a date to be arranged by the trial coordinator. h. A representative of the Law Society of Ontario shall be required to return on the next date this application is before me, which date will be set on March 8, 2023. The applicants shall provide the Law Society of Ontario with a copy of these reasons. i. His Majesty the King in the right of the Province of Ontario bear the cost of the appointment of the referee and the forensic analyst subject to any request to apportion those costs in some other fashion.

Justice Scott K. Campbell Released: March 3, 2023