Law Society of Alberta v Sidhu, 2016 ABQB 142

Court of Queen ’ s Bench of Alberta Citation: Law Society of Alberta v Sidhu, 2016 ABQB 142 Date: 20160311 Docket: 1401 10227 Registry: Calgary Between: Law Society of Alberta Applicant - and - Justin Jagjot Singh Sidhu Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice R.A. Neufeld _______________________________________________________ I.

Background [ 1 ] In this proceeding, the Law Society of Alberta (“LSA” or “Law Society”) seeks an order pursuant to s 55(3) of the Legal Professions Act , RSA 2000, c L-8 (“ LPA ”) compelling one of its inactive members to comply with a direction issued by a Law Society investigator. The direction demands that the lawyer, Justin Sidhu, provide stored cell phone and computer information. Mr. Sidhu takes the position that the LPA provisions relating to production of such information are unconstitutional, as authorizing unreasonable search and seizure contrary to s 8 of the Charter .

Alternatively, he says that those provisions should be interpreted so as to incorporate

safeguards to unreasonable search and seizure similar to those that apply in respect of search and seizures conducted under the Criminal Code . That is, prior authorization on the basis of Affidavit evidence attesting to reasonable and probable grounds that an offence has been committed, and that there is evidence of this to be found in the place of search (in this case, the cell phone and computer records sought). Mr.

Sidhu argues that the Law Society investigator Affidavits filed in this proceeding fall short of satisfying the second prong of that test. [ 2 ] In its written and oral submissions, the Law Society contends that its enabling statute is regulatory in nature, and is directed to the protection of the public interest. It argues that the practice of law is a privilege, not a right. The privilege is proscribed by many duties, including an obligation to cooperate with the Law Society and its investigators.

Under the circumstances, there is a low expectation of privacy in respect of business and intermingled personal information when dealing with the Law Society. Therefore, even if the investigatory provisions of the LPA are interpreted as being subject to the strictures of the Charter , which the Law Society disputes, they ought not to be found to infringe on s 8 rights.

II The Legal Profession Act [ 3 ] Before assessing the constitutional validity of the investigatory powers granted under s 55(2) of the LPA , it is useful to summarize the overall regulatory scheme as it pertains to investigation and adjudication of complaints against members. [ 4 ] It has long been recognized that members of the legal profession owe a variety of duties. They are officers of the Court, and upon admission to the Bar, are required to swear or affirm their preparedness to act with integrity, to uphold the law, and to generally place the Sovereign’s and the public’s interest before their own.

The oath of office is not a collection of empty words, but a personal promise made by each person who seeks the privilege of practicing law. [ 5 ] As a profession, lawyers are self-regulated. This, too, is a privilege. The LPA establishes the Law Society of Alberta as the body having responsibility to carry out that regulation.

Part 1 of the LPA deals with governance.

Part 2 deals with membership and qualification.

Part 3 deals with conduct of members.

Part 4 deals with protection of persons dealing with members – including operation of an Assurance Fund and provisions allowing for seizure and custody of property possessed by a member and the appointment of a custodian to manage a member’s legal practice. [ 6 ] This proceeding concerns

Part 3 of the Act : Conduct of Members. Subsection 49(1) casts a very broad net in describing the conduct that is subject to regulation: 49(1) For the purposes of this Act, any conduct of a member, arising from incompetence or otherwise, that: (

a) is incompatible with the best interests of the public or of the members of the Society, or (

b) tends to harm the standing of the legal profession generally is conduct deserving of sanction, whether or not that conduct relates to the member’s practice as a barrister and solicitor and whether or not that conduct occurs in Alberta. [ 7 ] Investigation and adjudication of complaints or other allegations of conduct deserving of sanction are dealt with under Division 1 of

Part 3. The Act sets out a multi-step process ordinarily involving the following:

a) initial review by the Executive Director;

b) direction by the Executive Director that the conduct be investigated;

c) reporting by the Investigator, together with a report by the Executive Director to the Practice Review Committee or Conduct Committee.

d) review of the member’s conduct by the Conduct Committee (or Practice Review Committee);

e) referral of the matter to a Hearing Committee; and

f) opportunity for appeal by a member found guilty of conduct deserving sanction to the Benchers of the Law Society. [ 8 ]

Section 78 of the LPA provides for consideration of privacy interests of a member under investigation, as well as complainants and witnesses appearing before a Hearing Committee or the Benchers.

Subsection 78(6) provides that if the Hearing Committee or a panel of Benchers forms the opinion that there are reasonable and probable grounds to believe that the member has committed a criminal offence, they must proactively send a copy of the Hearing Record to the Minister of Justice and the Attorney General, including, under s 78(7)(c), “copies of all witness statements but not compelled statements given by the member”. However, under s 78(8) the Executive Director shall provide “compelled statements” to the Minister of Justice and Solicitor General on request.

Protections are also provided, under s 112 against disclosure of information that is subject to solicitor-client privilege. III The Investigation [ 9 ] In this case, Mr. Sidhu’s conduct is at an early stage of review. Following a media report of his arrest for allegedly smuggling drugs into the Edmonton Remand Centre while meeting with a client, the Executive Director ordered an investigation. The investigation ordered by the Executive Director was specifically directed at the allegation of drug trafficking. Hence, from the outset the investigation was focussed on Mr.

Sidhu’s alleged commission of a crime, as opposed to his general conduct as a lawyer. Following the

Executive Director’s order, telephone and in-person interviews took place. Mr. Sidhu offered up copies of text messages between himand his client’s life partner, but declined to provide further personal and business cell phone and computer records as requested, assertinghis s 8 Charter rights against unreasonable search and seizure. [10] The Law Society’s process for investigation and adjudication of Mr. Sidhu’s conduct is at a standstill while that Charter issueis resolved. Mr. Sidhu is not an active member at present.

He was convicted of trafficking of methamphetamine, pursuant to theControlled Drugs and Substances Act, SC 1996, c 19, as a result of the incident at the Edmonton Remand Centre, set out above, and wassentenced to four years imprisonment. An appeal of that conviction is scheduled to be heard in November of 2016. IV Issues [11] The questions to be determined in consideration of this application are as follows: 1. Is s 55 of the LPA as worded unconstitutional without the express incorporation of reasonable and probable grounds,established on oath, as prerequisites for authorization of a search? 2.

If not, should s 55 of the LPA be interpreted as requiring reasonable grounds on oath in order to authorize search or seizureof computers and cell phones? 3. If s 55 of the LPA is valid, should the search and seizure be authorized prior to the conclusion of Mr. Sidhu’s criminalcharges? V Analysis A. Is the LPA as worded unconstitutional? [12] In my view, there is no serious question that s 55 of the LPA, as worded, is constitutional. [13] As discussed earlier, s 55 is part of a broad scheme for regulation of the conduct of lawyers.

It is invoked at an early stage inthe review of questionable conduct that comes to the attention of the Law Society, whether by complaint or otherwise. Subsection 55(2)is permissive and enables an investigator to direct a member to answer inquiries, produce records, and to attend before the investigatorfor the purpose of doing so. [14] A member is not subject to automatic penalty or sanction for declining to do so.

Rather, the Society has the right to apply tothis Court for an order directing the member to comply with the investigator’s request. [15] In considering such an application, the Court has wide discretion. It is not compelled to give effect to the investigator’s writtenrequest.

Leaving aside Charter considerations, if the Court concludes that the investigator has overreached by unreasonably intruding ona member’s privacy or that the request is overly broad – even at an investigation stage – the Court can decline to compel compliance. [16] On the face of it, therefore, there is no basis to determine that s 55 of the LPA, as worded, infringes the Charter. B. Should s 55 be interpreted so as to require that reasonable and probablegrounds be shown, on oath, prior to a judicial authorization of a search and seizure ofcell phone and computer records? [17] Mr.

Sidhu argues that on the basis of the principles articulated in Hunter v Southam, (SCC), [1984] 2 SCR145, investigators cannot simply demand production of records to which a privacy interest attaches, especially records comprised of amixture of personal and business information stored in his cellphone and laptops.

He says that Law Society investigators, likeinvestigators from the federal government’s Combines Investigation Branch of the 1980’s, are required to secure prior judicialauthorization for search and seizure, and that such authorization must meet a minimum standard of reasonable and probable grounds,established on oath: see Southam at 167. [18] In my view this is an overly simplistic expression of the legal principles involved. [19] In its subsequent decision in Thomson Newspapers Ltd v Canada (Director of Investigation and Research, Restrictive TradePractices Commission), (SCC), [1990] 1 SCR 425, the Supreme Court of Canada described the steps needed inassessing whether an order by a public authority to produce documents constitutes an infringement of s 8 of the Charter. [20] The first step is to examine the nature of the statute under consideration and determine whether it is a criminal statute,invoking a contest between the state and one of its citizens, with all of the consequences that flow from it, or a regulatory statute,designed to promote some other public interest objective, such as fair competition: see Thomson Newspapers at 509. [21] It is also necessary to examine, within the statutory framework, the purpose to be served by the investigation, and the scope ofinformation that might reasonably be demanded.

For example, investigating a restauranteur’s compliance with health standards or abuilder’s compliance with safety standards might necessarily involve on-site inspections, sometimes without notice. Similarly,compliance with minimum wage legislation can often only be assessed by inspection of an employee’s files and records: see ThomsonNewspapers at 506-7.

[22] In all of these cases, the regulatory scheme involved carries with it a low expectation of privacy. Search and seizure that mightrun afoul of the Charter when conducted in the context of a criminal investigation may not do so in the context of a regulatoryinvestigation. [23] The LPA and investigations undertaken pursuant to it are clearly regulatory in nature.

Members of the Law Society cannot andshould not expect to be able to keep from the Law Society any business records: see British Columbia Securities Commission v Branch, (SCC), [1995] 2 SCR 3 at para 58, and Smith v Law Society of Manitoba, 2011 MBCA 81 at para 16, leave to appealto SCC refused, 34569 (April 26, 2012). Members cannot and should not expect to be able to refuse to be interviewed by Law Societyinvestigators, or to give testimony should disciplinary hearings be held.

Compliance with such requests, and the loss of privacy that goeswith it, is part and parcel of the privilege of practicing law. [24] Given the regulatory nature of the LPA, the powers of search and seizure contained within it are not subject to an implicitconstitutional requirement that the application for judicial authorization must contain an Affidavit meeting the Southam tests. Anargument to similar effect was summarily dismissed by the Alberta Court of Appeal in Beaudette v Alberta (Securities Commission),2016 ABCA 9, and more recently in Arnold v General Insurance Council, 2016 ABCA 55.

In Beaudette, it was “tepidly” argued interalia that s 42 of the Securities Act, RSA 2000, c S-4, authorizing the extraction of information and documents from a person underinvestigation for securities violations constituted unreasonable search and seizure under s 8 of the Charter. The Court of Appeal stated atpara 4: This argument can be rejected, summarily, at the outset. The appellant has a low expectation of privacy, if any, in any knowledge orrecords he has related to his public trading in the capital markets: Thomson Newspapers Ltd v Canada, (SCC), [1990]1 SCR 425.

In any event, if his s 7 argument fails, as it does for the reasons that follow, there is reasonable lawful authority under theSecurities Act for requiring him to produce information and documents and, consequently, his complaint about s 8 at the ASCinvestigation stage withers. Whether some future effort to acquire the same information and documents for a different purpose by adifferent state agency might give rise to some form of s 8 complaint by the appellant is plainly a premature topic: compare Wakeling vUnited States of America, 2014 SCC 72, [2014] 3 SCR 549.

So his present s 8 argument has no independent life. [25] It could be argued that Beaudette is distinguishable in that the conduct under investigation by the LSA in this matter was analleged criminal act, and that the authorization sought would require production of personal cell phone and computer information. Idisagree. In my view, such facts do not serve to create a constitutional bar to the search and seizure at this stage.

The circumstances andintrusive nature of the search and seizure authorized under the LPA might give rise to some form of s 8 complaint should the product ofthe search be utilized in a future criminal proceeding. However, as noted by the Court of Appeal in Beaudette, that is a premature topicat the regulatory investigation stage. C. Should the Court exercise its discretion to grant the application, and if so, onwhat conditions? [26] The Law Society contends that it is entitled to an order compelling Mr. Sidhu to produce his cell phone and computer.

Itcontends that the facts gathered to date have established that the LSA has a “clear basis for questioning whether Sidhu was in fact“duped” into carrying drugs into the Edmonton Remand Center”. It says that Mr. Sidhu’s choice to use his cell phone and computer forboth personal and business purposes reduces his legitimate expectation of privacy, and that irrelevant information is of no interest to theLSA and can be weeded out later.

For now, it says, it is critically important for an investigator to be free to review all documents andevidence that relates to the investigation, and not a subset determined by the member to be relevant. [27] The LSA also rejects the suggestion by Mr. Sidhu that any order by this Court be stayed until criminal proceedings againsthim are concluded. It says that the LPA provides privacy protection, and that Mr. Sidhu retains the ability to contest any application bythe crown to obtain evidence held by the Law Society, assuming one is even contemplated, or argue it is inadmissible in his criminalproceedings.

It concludes by stating that “[g]iven the seriousness of the allegations against Sidhu, it is in the public interest that the LSAbe permitted to conduct a full investigation and [that] it proceed without delay.” [28] As might be expected, Mr. Sidhu takes a very different view. In his written argument, he contends that if the Law Societysearches proceed in advance of his upcoming appeal and potential retrial, he stands to be prejudiced, and to have his right to a fair trial, asguaranteed under s 7 and s 11 of the Charter, infringed.

In oral submissions, his counsel emphasized that there is no urgency to the LSAinvestigation as Mr. Sidhu is no longer practicing law; has been sentenced to four years imprisonment, and if unsuccessful on appeal oron a retrial, has little practical prospect of reinstatement. [29] In considering an application authorizing search and seizure under the LPA the Court is not, for reasons given earlier, requiredto apply the standard of “reasonable and probable grounds, on oath”, as has been developed in the criminal law.

That does not mean,however, that a decision such as this should not include, where applicable, consideration of basic principles of fundamental freedom andfairness, both of which are important foundations of the Charter.

They are also values that should be embraced by the Law Society indealing with both the general public and its members. [30] In the context of an application authorizing search and seizure as part of a regulatory investigation, the Court can and shouldconsider whether the order sought is necessary to the investigation, and whether there are less intrusive methods available to achieve theinvestigative result sought. This is an appropriate exercise of its discretion, independent of the dictates of the Charter. [31] In this case, the investigation was initiated on the same day that Mr. Sidhu’s arrest became public.

It was framed by theExecutive Director as an investigation into Mr. Sidhu’s conduct, “and, more specifically, into the drug trafficking charges against him”. [32] In my view, it follows that Mr. Sidhu’s conviction on those charges, and substantial term of imprisonment, was largelydispositive of the matter to be investigated. Mr. Sidhu’s conviction, should it be upheld on appeal, is conclusive proof that he committedthe acts of misconduct that triggered the investigation. Consequently, I consider it neither urgent nor necessary for Mr. Sidhu’s cell

phone and computer records to be reviewed at this time. To borrow the terms used in the supporting Affidavit of Law Society Investigator Dooks, they “may allow” him to find and “might provide” information on other acts of misconduct, such as past substance abuse, or exchange of legal services for drugs, but such issues are tangential to the purpose of the investigation as specifically directed. VI Conclusion [ 33 ] To preserve the cell phone and computer information for future disciplinary processes, I will require that the information be delivered and held by the Law Society.

As a matter of fairness, however, it shall not be reviewed or otherwise used by the Law Society without further authorization by this Court, following conclusion of Mr.

Sidhu’s criminal proceedings, including his upcoming appeal and, if applicable, any resulting retrial resulting therefrom. [ 34 ] Should an application be made in the future seeking authorization to review and utilize the cell phone and computer records being produced and preserved hereunder, it should be supported by an Affidavit that sets out the status of the criminal proceedings, the need for review of such records in order to complete the investigation report as directed by the Executive Director, and whether less intrusive investigatory methods are available to complete the investigation.

This will enable the Court to make an informed decision in weighing the public interest of an expansive investigation into Mr. Sidhu’s activities as a practicing lawyer, and private citizen, and balancing that against the intrusion of privacy inherent in search and seizure of mixed personal and business records. [ 35 ] Subject to the limitations discussed above, the Court will order that Mr. Sidhu comply with the direction of the investigator by producing the records or other property set out in the LSA investigator’s direction dated May 22, 2015, specifically:

i) Produce the records obtained from Mr. Sidhu’s cellphone by Urgentis Digital Crisis Solutions Inc.; and ii) Produce Laptop #1, Laptop #2 and the external hard drive referred to in Mr. Sidhu’s December 12, 2014 response to the LSA investigator. [ 36 ] Given the mixed success on this application, no costs will be awarded to either party. Heard on the 3 rd day of February, 2016 . Dated at the City of Calgary, Alberta this 11 th day of March, 2016. R.A. Neufeld J.C.Q.B.A. Appearances: Nicholas Maggisano for the Applicant Simon Renouf, Q.C. For the Respondent