Investigative Access to a Practitioner’s Electronic Devices

The Alberta Court of Appeal has reinforced a lower court ruling that, where relevant, a regulator can have access to a practitioner’s electronic devices even when they are partially used for personal purposes. In Law Society of Alberta v Sidhu, 2017 ABCA 224, the regulator began investigating Mr. Sidhu when media reported his arrest for allegedly bringing drugs to a client in jail. He was eventually convicted. Mr. Sidhu resisted attempts by the regulator to obtain full access to his telephone, laptop and other electronic devices on the basis that this amounted to an unreasonable, and quite intrusive, search and seizure. While the Court did not formally declare the enabling provision as being consistent with section 8 of the Canadian Charter of Rights and Freedoms (protecting against unreasonable search and seizure), it did state that the privacy expectations of members of regulated professions is significantly reduced. Ready access to information relevant to an investigation is necessary to protect the public. In addition, regulators often do have the authority to investigate a practitioner’s conduct in their private life where it reflects on their professional practice. Mr. Sidhu was found to have contributed to the problem by his own choices:

Moreover, it is important to emphasize that the appellant’s concern is of his own making. He has admittedly blended his business and personal life by using his cellphone and computers for both business and personal reasons, and by his further suggestion that he has allowed his friends to use those devices without regard for privilege and confidentiality concerns in doing so. That he now asserts an all-encompassing expectation of privacy when faced with a Law Society investigation is unreasonable and defeats the very objectives of the Act.

The Court found on the facts of the case that the regulator reasonably required access to the devices. The information appeared to be relevant even if the investigator had not formally stated that they had reasonable and probable grounds or a reasonable suspicion.

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