Investigative Powers Not to be Restrained in Advance

Can a regulator have access to the member’s personal cell phone and residence? In McLean v. Law Society of British Columbia, 2016 BCCA 368 the Court said “it depends”. In that case the lower court issued an injunction against the regulator from doing either. The British Columbia Court of Appeal quashed that injunction, but did not say that the regulator could do those things. The Court of Appeal observed that there had been no evidence that the Law Society intended to do either of those things. It found that injunctions should not be granted to prohibit any prospective action that was not in actual contemplation. For example, the Court of Appeal was concerned that there was no evidence as to what documents were located in the residence of the member or for what use the personal cell phone had been used. The implication was that if there was a reasonable basis for the regulator to believe that important and relevant information was to be found in either place, the investigation might “go there”. However, the implication was also that a regulator could not enter a member’s private resident or take possession of the member’s private cell phone on speculative grounds.

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