ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E N:
HIS MAJESTY THE KING
Jason Wakely, for the Crown/Applicant
- and -
DHAMI, INDERJIT
Accused/Respondent
Manbir Sodhi, for the Accused/Respondent
HEARD: April 2, 2026
RULING RE: SEARCH OF CELL PHONE
Dennison J.
Overview
1People use their computers and cellphones daily to engage in various highly personal activities such as banking, shopping and communicating with lawyers with respect to civil, family or criminal matters. The information contained on our computers and cell phones touches on the biographical core of personal information: R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, at para. 41.
2It is not uncommon that police seize cellphones and computers during criminal investigations. There has been a recent influx of Crown applications where investigators, while searching cellphones or other electronic devices, come across solicitor-client privileged communications. The Crown applications seek to protect solicitor client privilege while also making timely disclosure of the fruits of the police investigation.
3In this case, the parties presented a consent order to appoint a referee to search the contents of a cell phone after investigators came across a solicitor-client communication. The court signed this consent order. The investigators then started searching a second device seized from the accused and came across another solicitor-client communication and sought an order to appoint a referee to search that phone as well as the seven other devices the police had seized from the accused. The court raised concerns about appointing a referee to search all the devices and asked to hear more fulsome submissions.
4This case presented the court with an opportunity to review the jurisprudence regarding the various factors to consider in determining the appropriate protocol to protect solicitor-client communications on electronic devices. The court must ensure that any search of electronic devices minimizes the risk that the state will become aware of solicitor-client privileged communications and simultaneously ensure that society’s interest in the investigation and prosecution of criminal offences is not unnecessarily delayed.
5The order was ultimately made on consent. The parties have agreed that the respondent will provide the Digital Forensic Service team (“DFS”) with a list of lawyer names, telephone numbers, emails, modes of communication i.e. email, WhatsApp or any other key words (“lawyer identifiers”) that may indicate the presence of a solicitor-client privileged communication. The DFS will filter out the lawyer identifiers and then defence counsel and the respondent will review the filtered extraction to confirm that there are no further solicitor-client communications on the devices. On the facts of this case, this protocol makes practical sense. The respondent is the person who knows what communications are on his devices and defaulting to appointing a referee here, or in all cases, is not consistent with the jurisprudence.
Background facts
a) The investigation and discovery of privileged communications
6In June 2025, police arrested the respondent and charged him with several criminal organization offences. Police seized nine devices from his residence. The search warrant authorized examination of the devices.
7In December 2025, police examined the data on a gold iPhone and discovered that it contained a communication involving a solicitor described as “Paul Lawyer”. At the request of the Crown and with the consent of the respondent, the court appointed a referee to redact any solicitor-client communications on the gold iPhone and then return the data to the police.
8In January 2026, the police examined a second device, a Samsung Galaxy Z Flip5 phone, and discovered that it contained a communication involving a solicitor described as “Harjeet Sahota Lawyer”. The Crown brought another application with the consent of the respondent seeking to appoint the same referee to search that phone and the seven remaining devices that were seized. The court granted the order for the Samsung phone but was not prepared to grant the application with respect to the remaining seven devices as the respondent had not asserted solicitor-client privilege over the communications in those devices. The court adjourned the application and requested further submissions on whether the order should be granted and what would be the appropriate protocol.
b) Evidence filed on the application
9In support of the application, the Crown filed an affidavit from Peter Bitondo. He is a civilian member of the Peel Regional Police assigned to the DFS and holds the title of examiner. He has been an examiner for five years. Some of his duties include preserving and conducting forensic analysis of computer and electronic devices.
10Mr. Bitondo confirmed that the seven remaining devices have already been extracted and downloaded to the DFS isolated data storage, which means that no one outside of DFS has access to the data.
11Mr. Bitondo stated that he could use the Axiom tool created by Magnet Forensics to isolate the lawyer identifiers without viewing any of the documents. Axiom offers a feature called “Privileged Content”. He explained that where privilege is a concern, Axiom’s privileged content filter can be used as follows:
The court or parties provide DFS with a list of lawyer identifiers or key words that may indicate the presence of a solicitor-client communication.
DFS inputs the lawyer identifiers into Axiom’s Privilege filter and Axiom applies an automated process to filter out any document or data containing those lawyer identifiers or keywords. This is fully automated. The DFS technician who conducts this process does not see the content of any of the files that are filtered out.
The remainer of the data (minus the filtered content) is imported into a new filtered portable case that can be made available to the respondent or the investigators for examination.
The original unfiltered copy of the device data is segregated onto a server that is accessible only to DFS members.
12Mr. Bitondo explained that Magnet Forensics is a well-established forensic software business. Their website reports that it is used by more than 6,000 agencies and organizations in more than 100 countries. Magnet Axiom is a digital forensic tool used by numerous law enforcement agencies. Mr. Bitondo received training on this tool in 2021 and has used it in his role as an examiner.
13Mr. Bitondo attested that in his experience the Axiom tool is a reliable method of filtering out most types of data files including email, text messages, and word documents.
14He stated that Axiom is not effective in catching keywords contained in static media files such as pictures or PDFs bearing images. To address this concern, he explained that he and members of his team add an additional step. They process the Magnet Axiom case using Object Character Recognition, also known as Optical Character Recognition (“OCR”). OCR is a method of converting texts from static imagery (including text in PDF, scanned documents, and photographs) into machine readable text. He stated that this additional step significantly improves Axiom’s ability to catch static media files that contain listed key words.
15Mr. Bitondo also explained that a system generated artifact is a piece of data created automatically by the devices’ operating systems or applications to support their own functions. Unlike user generated data, i.e. a text message or photo sent by a user, system generated artifacts are produced automatically by the device without the user’s direct intent. A cached thumbnail is one such system generated artifact. It is a small, low-resolution copy of an image displayed on an app (including subsets of emails, text messages, photos, etc.). Certain applications automatically save these thumbnail images to the devices’ cache memory. They are transient in nature and exist until they are overridden or removed by the operating system.
16Mr. Bitondo explained that this means that thumbnail images of files will be saved to a device’s cache memory. Occasionally, these saved thumbnails may contain lawyer identifiers. In his experience, the Axiom privilege filter, even with OCR, will sometimes not capture the thumbnail image. He believes this may be due to the low resolution of the thumbnail images.
17Mr. Bitondo stated that he was not aware of any reported data regarding the reliability or accuracy of the Axiom process, so he conducted his own testing. He took four electronic devices and assigned them to four fictitious individuals, Lawyers #1 and #2 and Clients #1 and #2. He then generated data and documents in the two client devices that mimicked solicitor-client privileged documents. He added text communications, emails, word documents, PDF documents and pictures containing information involving Lawyers #1 and #2. The Axiom tool segregated all emails, text messages, word documents, and PDF documents. It removed 3 of the 5 generated pictures.
Guiding legal principles
1. Solicitor-client privilege
18Solicitor-client privilege is recognized as a principle of fundamental justice under s. 7 of the Charter and a fundamental component of the right to privacy under s. 8 of the Charter. As stated in R. v. Fox, 2026 SCC 4, 509 D.L.R. (4th) 670 (S.C.C.), at para. 35, “solicitor-client privilege helps to protect individual rights, but it also has a systemic importance for the administration of justice.” It is recognized as one of the strongest privileges protected by law and may only be set aside in the most unusual cases and can only be waived by the client with an informed consent. Robust protections are therefore necessary as “even accidental infringements of solicitor-client privilege erode the public’s confidence in the fairness of the criminal justice system.” See also R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445, at paras. 34-42; Lavallee, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61, [2002] 3 S.C.R. 209, at p. 241.
19Solicitor-client privilege is a “class” privilege as opposed to a case-by-case privilege. Solicitor-client privilege automatically protects confidential communications that fall within the privilege given the important social interests involved: Fox, at para. 26.
2. Crown has an obligation to act proactively
20Given the importance of solicitor-client privilege, the Crown has an obligation to act proactively to protect solicitor-client privileged information. As explained in Lavallee, at para. 39, in the context of the search of a law firm, the fact that counsel “will likely assert blanket privilege at the outset does not obviate the state’s duty to ensure sufficient protection of the rights of the privilege holder.”
21Courts employ the standard of “minimal impairment” when determining the reasonableness of state encroachments on solicitor-client privilege during a search: Lavallee, at paras. 36-37. This same standard should apply to the persons and processes that are appropriate for identifying and isolating privileged material, and how the privileged material should be stored: Re Solicitor-Client Privilege of Things Seized, 2019 BCSC 91, at para. 44; R. v. El Sayad, 2025 ABKB 336, at para. 38.
3. Case by Case approach must be taken
22In Lavallee, at para. 49, the Supreme Court of Canada listed ten guidelines which afford a high degree of procedural protections for the search of law offices which includes the following:
No search warrant can be issued with regards to documents that are known to be protected by solicitor-client privilege.
Before searching a law office, the investigative authorities must satisfy the issuing justice that there exists no other reasonable alternative to the search.
When allowing a law office to be searched, the issuing justice must be rigorously demanding so to afford maximum protection of solicitor-client confidentiality.
Except when the warrant specifically authorizes the immediate examination, copying and seizure of an identified document, all documents in possession of a lawyer must be sealed before being examined or removed from the lawyer’s possession.
Every effort must be made to contact the lawyer and the client at the time of the execution of the search warrant. Where the lawyer or the client cannot be contacted, a representative of the Bar should be allowed to oversee the sealing and seizure of documents.
The investigative officer executing the warrant should report to the justice of the peace the efforts made to contact all potential privilege holders, who should then be given a reasonable opportunity to assert a claim of privilege and, if that claim is contested, to have the issue judicially decided.
If notification of potential privilege holders is not possible, the lawyer who had custody of the documents seized, or another lawyer appointed either by the Law Society or by the court, should examine the documents to determine whether a claim of privilege should be asserted, and should be given a reasonable opportunity to do so.
The Attorney General may make submissions on the issue of privilege but should not be permitted to inspect the documents beforehand. The prosecuting authority can only inspect the documents if and when it is determined by a judge that the documents are not privileged.
Where sealed documents are found not to be privileged, they may be used in the normal course of the investigation.
Where documents are found to be privileged, they are to be returned immediately to the holder of the privilege, or to a person designated by the court.
23The Lavallee protections do not rigidly apply to electronic devices of clients. Electronic devices seized from a person are not presumptively privileged, unlike documents located at a law firm: R. v. Herritt, 2019 NSCA 92, 384 C.C.C. (3d) 25 (N.S. C.A.), at para. 110. The Lavallee protections are nonetheless helpful in cases where searches of electronic devices intersect with solicitor-client privilege because the principles recognize the importance of protecting privileged communications. There is no rigid formula applied, rather the court must apply a case-by-case approach that considers the unique circumstances of the case. Solicitor-Client Privilege of Things Seized (Re), at para. 34: El-Sayed, at para. 38; R. v. Dockstater, 2025 ONSC 601 (January 31, 2025), R. c. Astudillo, 2025 QCCQ 2999, at para. 39; R. v. Herritt; R. v. Gourkow, 2018 ONSC 829; R. v. Shah, 2015 ONSC 4853, and R. v. Romspen Investment Corporation, 2025 ONSC 348, at para. 29.
24It is important that the privilege holder be notified of the seizure and that they have a reasonable opportunity to: (1) examine the documents, (2) assert a claim of privilege and (3) have the issue judicially decided: See Directeur des poursuites criminelles et pénales c. Shérif de la chambre criminelle et pénale, 2016 QCCS 3155, at para. 37 (Saramac).
Various factors to consider in determining the appropriate protocol
25Courts across the country have engaged many different protocols for the extraction and review of material seized where solicitor-client privilege has been identified or claimed. I will review the jurisprudence and the various factors that may be relevant in determining how to proceed in a manner that minimally impairs the risk of the state breaching solicitor-client privilege.
1. What solicitor-client privilege is asserted?
26The first factor to consider is what is the claim of privilege? Courts have held that a blanket claim of solicitor-client privilege is not sufficient.
27For example, In the Matter of an Application for the Determination of the Solicitor-Client Privilege in Relation to Items Seized, 2025 BCSC 1041, the target of the investigation asserted an unparticularized claim of solicitor-client privilege over 29 seized electronic devices and proposed that a referee be appointed to examine the devices. The respondent asserted that this was consistent with the principles in Lavallee. Associate Chief Justice Homes rejected the respondent’s proposal noting that Lavellee contemplates a privilege holder identifying the specific documents in which a privilege claim is made because the privilege is claimed with respect to a particular communication not a class of communications: at para. 9. Associate Chief Justice Holmes noted that “it would not be a responsible use of public resources to embark on the process the respondent proposes in relation to all of the devices without some indication that his privilege claim may have a foundation”. Her Honour held that “a person claiming a privilege in relation to vast amounts of seized material and asking the court to direct a resource-intensive and time-consuming process to help them narrow their claim to specific communications, have some obligation to satisfy the court that a basis exists to embark on that demanding process.” Holmes A.C.J. noted that demanding evidentiary support for a privilege claim guards against the risk of overbroad claims that give rise to delay and the potentially unnecessary use of public resources: paras. 18 and 21.
28Similarly, in Solicitor-Client Privilege of Things Seized (Re), Brown J. at para. 40, held in the context of reviewing a search warrant that “there must be more than a mere assertion that there might be some solicitor-client privileged material on the premises” to engage the Lavallee principles.
29It is not uncommon for the privilege holder to provide lawyer identifiers when asserting solicitor-client to assist the filtering process. Some privilege holders have expressed concern that by providing lawyer identifiers the privilege holder is conceding ownership, and the Crown may use that against them later. This concern can be addressed by including terms in the order that require the person to provide the lawyer identifiers. That way they are compelled by law to provide the information, as opposed to volunteering the information. In my view, the privilege holder is best placed to provide the lawyer identifiers in asserting solicitor-client privilege that would assist in isolating the potentially privileged records and such cooperation should be encouraged as it will assist in expediting the process.
30I do however recognize that there may be situations where disclosure of the name of the lawyer itself may be protected by solicitor-client privilege: Lavallee, at p. 235. In those circumstances, the court may consider receiving evidence and submissions in camera if necessary to ensure those rights are protected: Determination of Solicitor-Client Privilege, at para. 30.
2. Should the extraction and/or filtering be completed by the police or an independent third-party technician?
31It is common that the police complete the phone extraction and that the lawyer identifiers provided by the privilege holder will be filtered out by the police. Where, however, there is a real risk beyond minimal impairment that the police will see the documents, an independent third party is usually ordered to conduct the extraction and/or the filtering of solicitor-client privileged communications.
32For example, in Solicitor-Client Privilege of Things Seized (Re), the Crown brought an application to have the CRA’s Certified Forensic Analyst (“CFA”) team process electronic devices seized from the respondent’s residence and business in relation to income tax offences. The CFA team seized approximately 40 electronic devices. The devices had been cloned. One copy was provided to the defence, and one copy was sent to the CFA lab for processing. The respondent asserted solicitor-client privilege over all the electronic devices and the CRA was ordered to suspend its search. The respondent provided a list of documents that they had discovered were protected by solicitor-client privilege.
33The Crown proposed that the CFA isolate the documents using names of counsel and if upon further examination of the material additional solicitor-client information was discovered, it would be isolated, and the investigators were not to have access to the redacted data. The Crown adduced evidence that the CFA could make copies of the material without reviewing it.
34The respondent maintained that the court should appoint an independent referee from the Law Society and that an independent computer forensic team should be appointed. The Law Society also intervened and submitted that a referee and an independent forensic analyst should be appointed.
35Justice Brown stated at para. 66, that “past cases suggest that an operationally independent [police] forensics department with technical expertise may be appropriate to isolate solicitor-client privileged material”. Justice Brown nonetheless appointed an independent technician to perform the isolation process “out of an abundance of caution” as this would allow for an efficient and reliable separation of solicitor-client privileged materials. He held that with the independent technician the respondents could be more descriptive with the keywords, which in turn lessened the risk of inadvertent disclosure: at paras. 69, 79.
36Similarly in R. v. Romspen Investment Corporation, 2025 ONSC 348, Justice Forestell appointed an independent third-party analyst. The Quebec Revenue Agency investigated the respondent for offences under the Excise Tax Act. He was a commercial lender. Immediately upon executing the search warrant, privileged communications were identified consisting of 13 envelopes and five USBs.
37The Crown sought to have an IT specialist from the Computer Forensics department of the Quebec Revenue Agency copy the electronic documents without viewing the material. The IT specialist testified and acknowledged that some information about the nature of the documents could be disclosed in the copying process. The court determined that an independent third-party analyst should be appointed given that the nature of the documents could be evident from the naming of the files and there was a risk of inadvertent viewing of the documents during the copying process. However, Justice Forestell noted at para. 31, that “where the material can be copied without impacting the integrity of the material, including the metadata and where the material can be copied without being viewed, there may be no impediment to the material being copied by either law enforcement officers or a clerk.” The court subsequently ordered that the respondent with the assistance of the third-party analyst should extract the documents over which they claimed privilege within 60 days, and the other documents should be provided to the Crown. The court also appointed amicus curiae to assist the self-represented accused.
38In R. v. Shah, Justice Molloy appointed a third party because during the process of copying some of the material, it would inevitably be seen by the police.
39In other cases, courts have been satisfied that there is not a real risk of the police observing the privileged material during the extraction or filtering of the lawyer identifiers. They have ordered that police complete the extraction and filtering of the privileged information.
40For example, in Saramac, the respondents made a claim of solicitor-client privilege when the Sûreté du Québec (“SQ”) executed five search warrants. The parties could not agree on who should prepare the electronic copies. Justice Bourque held that it was not a constitutional requirement of minimal impairment to solicitor-client privilege for an independent technician to handle the electronic documents. She found that the SQ’s technology division (Independent Forensic Unit) had operational independence from the investigation, which included a separate office space with separate access. Justice Bourque found that they were the appropriate body to create the copies and hold the master copies which contained solicitor-client privileged information because the computer technician did not examine, access, or consult with the contents of the solicitor-client privileged information. Where potentially privileged documents are identified by the holder, they could be isolated and placed on an external computer medium by SQ. Once the potential solicitor-client privileged documents were identified and removed, the remaining file were to be handed over to the investigator.
41Justice Bourque held that the fact that the SQ technician “could” access the privileged documents was minimal and even speculative. The technician was not required to look at the documents and there was a prohibition against doing so. The court should not assume that the police will not comply with the court order. However, given the importance of the solicitor-client privileged information, she concluded that it was appropriate to have the technician swear an oath of confidentiality. She also noted that the work would be under the supervision of the independent counsel who could advise if there were any breaches.
42The use of the SQ technicians to copy and extract the solicitor-client privileged information appears to be the common practice in Quebec as noted by Justice Baribeau in Surete Du Quebec v. Cyr, 2025 QCCS 4810. In that case, Justice Baribeau held that the Justice of the Peace erred in not acceding to the joint position to have the SQ extract the contents of a cell phone that was seized during a firearm investigation. The JP ordered that an independent third party conduct the extraction. Justice Baribeau explained that it was common practice to have the digital forensic unit conduct the extraction and purge the data using software that detects search terms and then for the technician to exclude them manually. The program then generates a new copy of the material containing the remaining data that is provided to the investigators. That system has some margin of error. In that case, there was no requirement that an independent counsel supervise the extraction. Justice Baribeau held that requiring an independent third party in each case would unnecessarily paralyze investigations in Quebec and impose significant costs upon the state.
43In Determination of Solicitor-Client Privilege in Relation to Items Seized, Holmes A.C.J. commented that the use of an independent analyst was not the only or most appropriate approach. She noted that the process to search the 20 devices in Solicitor-Client Privilege of Things Seized took many years to complete. Associate Chief Justice Holmes noted that there were no analysts available to do this work within a reasonable time and the respondent did not have a proposed analyst. Ultimately, she did not decide this issue at that stage as the respondent had not demonstrated a sufficient basis to create a protocol to protect solicitor-client privilege.
44In the context of challenging search warrants, the court in El-Sayed held that having the police conduct the extraction did not breach s. 8 of the Charter. When the police seized several cellphones, the accused claimed a blanket privilege and asserted that the process in Lavallee should be followed. The accused declined to advise what information was privileged and to be present during the search. The judge found that the search warrant sufficiently minimized and protected any solicitor-client privileged communications that may have been discovered. Those conditions included that:
The police could create the extraction from the cell phone without viewing the data content in a human readable form.
That the police’s Digital Forensic Section would utilize software to isolate potential solicitor-client data that related to any contact with a named lawyer.
Only after filtering and isolating those communications, was a member of the Forensics permitted to review the material.
If during that review they came across any potentially privileged material, they had to stop reading and seal the material.
The forensic officers keep any solicitor-client privileged information they inadvertently observed confidential.
Once the information was shared with the investigators, if they inadvertently came across any solicitor-client privileged documents, they were to immediately seal it and stop reviewing the material.
3. Who should identify and excise the privileged communications?
45Another issue that must be determined is whether anyone should review the material before it is provided to the investigators. Courts commonly order the privilege holder to review the material to determine if it contains solicitor-client privileged communications. Where however there are multiple privilege holders, or the businesses involved are more akin to a lawyer’s office, courts have appointed an independent third party or referee to review the material.
46The argument that requiring the privilege holder to review the devices to identify the solicitor-client privileged documents violates the target’s Charter rights has been repeatedly dismissed by the courts.
47For example, in Gourkow, the court ordered the accused to review the seized data. While reviewing the disclosure the Crown discovered an email from a lawyer. The Crown did not read the email, sealed it and contacted defence counsel who asserted solicitor-client privilege over the seized device. The material was sealed and filed with the court. The Crown submitted that the accused should be provided with a copy of the USB to review and determine what documents she claimed privilege over. Defence counsel opposed this procedure and stated that it was contrary to Lavallee. Defence counsel submitted that it would compel the accused to assist the prosecution and instead proposed the appointment of amicus. Justice McArthur found that having the accused review the material was not contrary to the principles in Lavallee. She held that there are good policy reasons for appointing a referee where there are numerous client files to ensure that all the clients were notified and could assert privilege. The accused was the only privilege holder and requiring her to review the documents would not conscript her against herself but rather it would protect her rights: at para. 12. Justice McArthur found the Crown’s proposal to be “sensible, reasonable and appropriate”. The court ordered that a copy of the USB be provided to the accused to review and to advise the court and Crown whether privilege was asserted over any of the seized documents within 60 days.
48Similarly, in Herritt, the Nova Scotia Court of Appeal upheld a trial judge’s order that the accused review the material to assert solicitor-client privilege. In that case, the police charged the accused with drug trafficking. The police seized the accused’s cell phone and obtained a search warrant to search the contents of the phone. The police located some images that contained communications with Legal Aid counsel. They immediately stopped viewing the material and sealed it. The Crown narrowed the search to exclude images and other messages outside of a one-week period surrounding the alleged offence. The Crown then applied to have defence counsel review the remaining 500 pages and report back whether they claimed solicitor-client privilege over any of the documents. The Court of Appeal held that the judge reasonably exercised their discretion in requiring the accused, in consultation with their lawyer, to review the documents to determine if they asserted privilege over any of the documents. They noted that it was the accused who held the privilege and in accordance with the principles set out in Lavallee, they were given an opportunity to claim that privilege. The Court held that it would have been difficult for the accused who is not a lawyer to determine if they were claiming privilege on their own. The Court of Appeal held that requiring counsel to assist in the review was not dividing counsel’s loyalty to their client but allowing defence counsel to “act as his client’s advocate and be a partisan as he wished.”
49The respondent made a similar argument in Determination of Solicitor-Client privilege, which was dismissed. The respondent argued that he had the right to remain silent and not to assist the Crown. He also asserted that by giving the Crown a basis for the claim, it may have the effect of undermining the privilege he sought to protect. The court recognized that it has the responsibility to protect the respondent’s Charter rights but held that sufficient safeguards and measures could be put in place to ensure the privilege was protected including hearing evidence in camera.
50In El-Sayad, Justice Burns held that having the privilege holder identify the potentially privileged information was the best way to ensure their rights were protected. Justice Burns stated at para 60:
There is no doubt that the Accused has a right to remain silent and bears no obligation to assist the state in its investigation against him. However, I share the view of the Courts in Gourkow and Herritt CA that involving the privilege holder in the identification and isolation of potentially privileged material is the best way to ensure that they are given the opportunity to assert their rights. The collaboration and communication sought by the Crown in this case is to be encouraged where possible, and spares limited judicial resources sorting through countless communications that may or may not be identifiable as privileged. Again, the privilege holder – in this case the Accused – is in the best position to identify those communications so that they can be avoided entirely.
51In R. v. Douglas, 2017 MBCA 63, at para. 83, the Manitoba Court of Appeal considered the validity of two search warrants and claims of solicitor-client privilege. The Court of Appeal declined to quash the search warrants and ordered that the target of the search identify what documents he claimed privilege over within 30 days because the applicant “knows precisely what documents were seized as originals had been returned to him”: at para. 83.
52In some instances, the target of the search volunteers to review the documents. For example, in Solicitor-Client Privilege of Things Seized (Re), the target agreed to provide a list of keywords that were provided to the independent technician to filter out with the supervision of the target’s lawyer. Justice Brown noted that the appointment of referees has utility in searching law offices because there is a potential for multiple claims of privilege involving clients. The referee can assist in notifying the relevant claim holders. Where there is only one person claiming privilege, it makes sense for that person to make the claim: at para. 63.
53Similarly in R. v. Shah, the accused volunteered to review the data. He took the position that he did not know if it contained solicitor-client privilege without reviewing it.
54Courts have appointed referees and independent counsel where the businesses are like a law firm or involve corporations or where there is more than one likely privilege holder or where the police assert that the “crime exception” to the privilege applies.
55For example, in R. v. Gong, 2019 ONSC 5899, police obtained production orders in relation to the target and several companies under his control. The production orders were for files held by Price Waterhouse Coopers in relation to accounting and taxation matters. The target of the investigation asserted solicitor-client privilege over the documents stating that the files were part of the lawyer’s brief for Gowlings that he had retained to assist him and his operations to apply for the CRA’s voluntary disclosure program to amend previous tax filings. Justice Copeland found that there was a reasonable basis to find that the files would contain solicitor-client privileged information. She appointed a referee to extract the documents that would likely be protected by solicitor-client privilege.
56In R. v. Shultz, 2018 ONCA 598, 142 O.R. (3d) 142 (C.A.), police obtained a search warrant for electronic devices and documents from a lawyer’s residence in relation to a child pornography investigation. A referee was appointed as a term of the search warrant: at para. 5.
57In Saramac, Justice Bourque held that independent counsel should be appointed. She noted that where a search has a broad scope, covering a long period of time over which the offences were committed, when there are thousands of electronic documents under seal for which the crime exception is raised, the procedure to identify privileged documents is bound to be different than where privilege is claimed over a few documents. Thus, when the search concerns an extremely large number of electronic documents it may be necessary to appoint independent counsel to ensure that professional secrecy is respected during the preliminary steps in preparing the documents or during any subsequent handling.
4. Where should the material be stored?
58Another issue that must be considered is where and how the privileged material should be stored. All material from seized devices must be stored in a manner that minimally impairs the risk of breaching the privilege. As discussed in A.G. v. L.S.U.C., 2010 ONSC 2150, at para. 38:
Any protocol for the storage of seized devices must be as reliable and trustworthy as possible. The public confidence in the administration of the criminal justice system relies on the respect for the solicitor-client privilege which must be “as close to absolute as possible”
59In considering storage issues the court must ensure that the integrity of the electronic data is not compromised. It may be possible that the privileged information can be deleted from the police digital forensic systems, and the entire file can be filed under seal with the court. See Solicitor-Client Privilege of Things Seized (Re), at para. 20; Gourkow, at paras. 15 & 82, and R. v. Shah, at para. 31.
60If the data is sealed and located at a police forensic location, sufficient terms must be included that minimally impair the risk of a breach of solicitor-client privilege and maintain confidence in the administration of justice. Such terms can include limiting access to the material subject to further court order and the destruction of the material once the matter is completed.
5. Other conditions that can minimize the impairment to solicitor-client privilege
61Courts have included various other conditions to minimally impair the risk of a breach of solicitor-client privilege and to ensure that if there is a breach that its impact is minimized.
62For example, most protocols contain an order that if a forensic examiner or investigator comes across a document that may be protected by solicitor-client privilege, they must stop reading it immediately and isolate it, and seal it and notify the Crown so the matter can be dealt with by the Crown: See El-Sayad, at para. 58.
63Another common clause is that if any DFS member or investigator sees a document that may be protected by solicitor-client privilege, they are prohibited from discussing it and using that information in any way to advance the investigation: El-Sayad, at para. 58; Douglas, at para. 88.
64In another case, the court has ordered the DFS technicians take an oath of confidentiality: Saramac, at para. 121.
6. Summary of factors to consider
65The appropriate protocol will depend on the particular facts in the case. Before asking the court to make any order, the parties would be well advised to discuss the particular situation in the particular case so as to be able to make practical and appropriate recommendations to the court. While this list is in no way exhaustive, it may assist in determining what conditions to impose when establishing a protocol to ensure that solicitor-client privileged communications are protected:
What is the nature of the privilege claim? Is it a blanket claim of privilege? What evidence has been offered in support of the claim?
How many privilege holders are there? Is there only one privilege holder believed to be on the devices or are the number of potential privilege holders unknown?
Were lawyer identifiers provided? Is the privilege holder willing and able to particularize their privilege claim by providing what device the privileged communications are on, lawyer(s) names, contact information or what platform was used for the communication, which may make it easier to isolate potentially privileged information?
What is the volume of communications for which privilege is claimed? Are there numerous devices where privileged communications are claimed or is it limited to a particular device, application or particular documents?
Where were the devices seized from? Were the devices seized from a location that is more akin to a law office, such as a lawyer’s home, business office, such as the office of an accounting firm, or are they from an individual’s home?
What safeguards are in place if it is proposed that the police conduct the extraction and filtering? Is the department conducting the extraction and/or filtering the information separate from the investigative agency? Would the DFS be able to view the privileged information when extracting or filtering out the privileged information? How would access to the privilege material be limited?
What are the timelines to complete the review? Expediency cannot justify impeding on the protections that are to be given to solicitor-client privilege. But the availability of an independent third party to conduct an extraction and filtering is a factor that may be considered as the court must also ensure that the matter proceeds in a timely fashion with sufficient safeguards.
Where will the original material and privileged material be stored? Is it proposed that the originals will remain with the DFS? If so, what safeguards are in place to ensure the privileged communications are not viewed and kept indefinitely? Is it proposed that copies will be filed with the court under seal and the DFS will destroy the material? If so, how can the court be assured that this will not compromise the integrity of the original material?
What confidentiality orders are necessary? If an independent third party is reviewing the material, and they will be working with the privilege holder, should there be a confidentiality order between the parties? Similarly, if the DFS is excising the privileged material, what confidentiality orders should be in place for DFS?
What conditions should be in place should further potentially privileged communications be located? Despite conditions that minimally impair the risk of breaching solicitor-client privilege, it is still possible that some privileged documents are inadvertently disclosed to the investigators and Crown. What conditions should be put in place should this occur?
Application to the facts in this case
66I have considered the material filed and the submissions of counsel. I am satisfied that it is appropriate to grant the order proposed by the parties for the following reasons.
67I accept Mr. Bitondo’s evidence regarding the effectiveness of the Axiom privilege feature. His evidence was not challenged. The Axiom privilege feature was created for the very purpose of segregating privileged communications. I also accept that there is a small risk that Axiom will not capture solicitor-client communications that are in photographs and thumbnails. If that was the only concern in this case, the Crown may have been able to suggest conditions to restrict DFS from viewing the photographs and thumbnails.
68But this is not a case where privilege issues are restricted to the information contained in the lawyer identifiers. The respondent’s counsel did not claim privilege on the devices prior to the hearing of this application. However, at the hearing of this motion, counsel submitted that there may well be privileged communications on some of the devices, but his client does not know which devices he used, as he switched devices over time. The respondent’s counsel also explained that the accused had been prosecuted for various offences over the past four to five years and his client is not sure what other lawyers he may have consulted in addition to the named lawyers that have been found on the two devices thus far.
69I do not see the need to appoint an independent third party to filter out the lawyer identifiers. DFS will not see any of the potentially privileged communications that are filtered out. Filtering out the lawyer identifiers prior to the respondent reviewing the extractions makes sense as it lessens the risk of the respondent missing solicitor-client communications when the respondent reviews the material. It also makes the respondent’s review easier.
70There is also no need to appoint a referee in this case. The respondent is best placed to determine what communications are privileged. The respondent’s claim of privilege is very general. He does not know what devices may contain solicitor-client privileged information and he does not recall the names of the lawyers he may have had privileged communications with. The respondent can review the material to determine if there are any additional solicitor-client communications with lawyers that were not captured using the Axiom filter. If the respondent asserts privilege over certain documents and provides further lawyer identifiers, DFS will use the Axiom filter again to filter out any documents in case the respondent missed any other documents. Appointing a referee to review all the devices to determine if there are any further solicitor-client communications on the devices would not be a proper use of public resources in these circumstances.
71There are additional safeguards proposed which further minimize the risk of a breach of solicitor-client privilege. For example, after the respondent’s review of the material is completed, there are conditions to address the possibility that investigators come across a privileged communication that the respondent missed. If the investigator comes across a privileged communication, the investigator shall immediately stop, view the document tag so it can be removed and immediately notify the respondent’s counsel of the discovery and resubmit the portable case to refilter and excise the document. In addition, if the DFS technician or police investigator inadvertently observes the contents of a privileged communication, they are prohibited from disclosing, communicating, or acting on that information. The DFS technicians are also required to review the terms and conditions and formally sign their understanding of their role prior to executing the order. Finally, all filtered material can only be viewed in accordance with the search terms or a further order of the court, and the material is to be destroyed upon the matter being concluded. There is no request for the Crown to seek to review the privileged material.
72Where there is a claim of solicitor-client privilege, the parties should always try to work out the details for an appropriate protocol that reflects the circumstances of the case, as was done here.
73The consent order is granted on the terms set out in appendix A.
Dennison J.
Released: June 2, 2026
CITATION: R. v. Dhami, 2026 ONSC 3121
COURT FILE NO.: CR-25-1088
DATE: 2026-05-**
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
- and –
INDERJIT DHAMI
RULING
RE: Search of Cellphone
Dennison J.
Released: June 2, 2026
Appendix A
SUPERIOR COURT OF JUSTICE
(Central West Region)
The Honourable Justice Dennison)
IN THE MATTER of an application for directions regarding the execution of a search warrant issued by Judge L. Daviau on June 4, 2025.
ORDER
THIS APPLICATION for directions, made by counsel for the Attorney General for Ontario, was heard before me at the Superior Court of Justice, 7755 Hurontario Street, Brampton, Ontario, on April 7, 2026.
UPON READING the Notice of Application, the affidavit of Peter Bitondo sworn on March 6, 2026, the written submissions of the parties, and upon hearing the submissions of counsel and the consent of the accused;
THIS COURT ORDERS:
- This order applies to the Peel Regional Police’s extraction, filtering, and examination of documents and data from the following seven devices (hereinafter described as “the Devices”):
i. Apple iPhone: PY25019680
ii. Apple iPhone: PY25019688
iii. Samsung phone: PY25019683
iv. Apple iPhone: PY25019695
v. Apple iPhone: PY25019689
vi. Apple MacBook: PY25019672
vii. Apple iPad tablet: PY25019668
List of solicitors and their identifiers
The respondent, Inderjit Dhami, through his counsel, shall prepare a list (hereinafter “the List”) specifying – to the best of the respondent’s information, knowledge and belief – the names of his solicitors whose communications may be on the devices in paragraph 1. The List shall include the solicitor’s name, the name of their firm (if any), and their phone number, email address, and any other telecommunications identifier used by the solicitor to communicate with the respondent. The List shall also include this same information for any other lawyer, paralegal, articling student, or legal professional who assisted the solicitor in connection with the respondent’s legal matter.
The respondent’s counsel shall provide this list to Crown counsel within ten days of the issuance of this order. Crown counsel shall provide this list to the supervisor of Peel Regional Police’s Digital Forensic Services (DFS) unit to be utilized as described below.
Use of Magnet Axiom to filter out solicitor communications
With respect to the data extracted from the Devices specified in paragraph 1, members of Peel Regional Police’s Digital Forensic Services (DFS) unit may input the List into the computer program Magnet Axiom to search the data for any document or data that contains one of the listed solicitor names or telecommunication identifiers. Any documents or data that that do contain solicitor names or identifiers from the List shall be segregated as defined in paragraph 7. The DFS member may then produce a portable case consisting of all the remaining documents and data that do not contain the listed names and identifiers (hereinafter described as “the filtered portable case”).
The filtered portable case shall be provided to counsel for the respondent who then shall have 30 days from the date of receipt of the filtered portable case for each device to notify Crown counsel whether the respondent asserts solicitor-client privilege over any data remaining in the filtered portable case. If so, then counsel for the respondent shall provide sufficient particulars of the claim (including the type of information specified in paragraph 2) to enable another round of filtering as described in paragraph 4. This process may be repeated as many times as necessary to filter out all solicitor communications. Once the respondent no longer asserts solicitor-client privilege over the data in the filtered portable case, that version of the filtered portable case (hereinafter described as “the final filtered version of the portable case”) may be provided to Peel Regional Police investigators.
The 30-day period for counsel for the respondent to review the materials may be extended by further written consent of the parties or by further court order.
Segregation of unfiltered data
The final filtered version of the portable case may be examined and used by investigators in the ordinary course.
Any earlier (non-final) versions of the portable case shall be segregated onto a DFS-only server and kept inaccessible to investigators. Likewise, the original forensic images and data extractions of the paragraph 1 devices shall be segregated onto a DFS-only server and kept inaccessible to investigators. These items may only be accessed:
a. by DFS in accordance with paragraphs 4 and 5; or
b. by further order of this Court.
- When the investigation of the offences and/or when any charges resulting from the investigation have been finally disposed of, including an appeal periods the earlier (non-final) versions of the portable case shall be destroyed.
Examination of the portable case
- During the examination of the portable case referenced in paragraph 7, if an investigator observes any document or data that contains (1) a solicitor’s name or identifier from the List, or (2) a solicitor communication (whether included in the List or not), then that investigator shall promptly:
a. Avert viewing the content of the communication.
b. Tag the relevant document or data within the portable case, to facilitate its future removal through filtering.
c. Close the portable case and deny access to any investigator.
d. Notify respondent’s counsel of the discovery. This notice may be provided by the investigator or by Crown counsel.
e. Re-submit the portable case to a member of DFS to be re-filtered.
- Upon receipt of the re-submitted portable case, DFS shall:
f. Segregate that portable case in accordance with paragraph 8.
g. Remove from the portable case the tagged document or data described in paragraph 10b.
h. If the tagged document (described in paragraph 10b) identifies a solicitor name or telecommunication identifier that was not included in the original List (paragraph 2), then DFS shall refilter the data in accordance with paragraph 4 to create a new portable case.
i. Treat this new portable case in accordance with paragraph 5.
j. This process may be repeated as necessary.
Prohibition on disclosure
- In executing this order, if a DFS technician or a police investigator inadvertently observes the content of a solicitor communication, they are hereby prohibited from disclosing, communicating, or otherwise acting upon the information contained therein. They shall treat any such information as confidential.
Police Review of the Terms & Conditions
The DFS technicians and police investigators assigned to execute this order shall review its terms and conditions, and formally signify their understanding thereof, prior to executing the order.
Any party may apply for further direction regarding this order before me on three days’ notice to the Court and parties.
DATED at Brampton, Ontario this day of , 2026.
Judge of the Superior Court of Justice
Court File #: CR-25-1088-MO
SUPERIOR COURT OF JUSTICE
(Central West Region)
HIS MAJESTY THE KING
v.
INDERJIT DHAMI
IN THE MATTER of an application for directions regarding the execution of a search warrant issued by Judge L. Daviau on June 4, 2025.
ORDER
Jason J. Wakely Crown Counsel Jason.Wakely@ontario.ca
Ministry of the Attorney General Crown Law Office – Criminal
720 Bay Street Toronto, Ontario
M7A 2S9