Search and Seizure

Authors Nader Hasan (Defence counsel) and Mabel Lai (Crown counsel) will discuss the evolving body of legal rules and principles that govern how searches and seizures are conducted. In particular, they’ll cover:

• The increased complexity of assessing a person’s reasonable expectation of privacy in the digital age. 
• Section 487 search warrants, computer device searches, warrantless searches, and exclusion of evidence.
• The Garofoli process.

Summary of Professionalism Content  (15 minutes)

• (5 minutes) What ethical and legal constraints apply to a Crown who receives a ss. 8 and 24(2) Charter application, and now must prepare their witnesses (usually police officers) and their response? How can defence counsel fully comply with the notice requirements under the rules of court, without unduly tipping their hand and compromising their tactical advantage? (1.6 Duties related to advocacy (not to abuse the tribunal process, mislead the tribunal, parameters around communication with witnesses, need for full disclosure, etc.); 1.14 Ethical considerations for lawyers or paralegals employed in public service; 1.15 Required conduct of lawyers or paralegals arising from statute, legislation or other legal authorities; 4.6 Complying with parameters for communicating with witnesses giving evidence)
• (5 minutes) What ethical and legal constraints apply to a defence counsel performing their independent investigation (which may implicate confidential informers) in anticipation of sub-facial attack on the validity of a judicial authorization? How can Crown counsel, at the advisory or litigation stage, meet their duty to make Stinchcombe disclosure in respect of a judicial authorization, while complying with their duty to protect informer privilege, which prohibits disclosure of any information that could tend to identify a confidential informer? (1.1 Duty to maintain confidentiality, including justified and permitted disclosure (may include discussion of privilege); 1.2 Duty to avoid and manage conflicts of interest; 1.14 Ethical considerations for lawyers or paralegals employed in public service; 1.15 Required conduct of lawyers or paralegals arising from statute, legislation or other legal authorities)
• (5 minutes) What ethical and legal constraints apply to Crown and defence counsel who are giving legal advice or litigating in an area in which the law is uncertain or unsettled, such as digital privacy and the application of s. 8 Charter principles to novel technologies? (1.6 Duties related to advocacy (not to abuse the tribunal process, mislead the tribunal, parameters around communication with witnesses, need for full disclosure, etc.); 1.14 Ethical considerations for lawyers or paralegals employed in public service; 1.15 Required conduct of lawyers or paralegals arising from statute, legislation or other legal authorities; 1.16 Best practices for analyzing ethical dilemmas; 4.3 Refraining from sharp practice).