Transfer pricing
under spotlight

PAGE 10

CRISTIN SCHMITZ OTTAWA

Lawyers warn that Ottawa has embedded USA Patriot Act- inspired gag provisions into its “lawful access” legislation that could bar people from telling anyone — including their counsel — that the state is compelling them to preserve or produce confidential information about third parties.

Bill C-30, which awaits study by the House of Commons justice committee, has provoked controversy over its proposal to empower police, CSIS and other officials, without a warrant, to force Internet Service Providers(ISPs) to disclose subscriber data so that anonymous online activity can be traced to its origin.

But lawyers point out that Bill C-30 would also create a number of equally intrusive, but overlooked production and preservation orders that expand access by the authorities to a trove of private information that is now off-limits.

Civil libertarians are ringing
alarm bells, as well, over the
potentially vast curtain of
secrecy that Bill C-30’s non-
disclosure provisions could
draw around the state’s use of
its substantially expanded sur-
veillance powers.
The legislation would import
into the Criminal Code aspects of
the Patriot Act’s much broader
gag provisions that were later
held unconstitutional south of
the border.
As currently written, C-30’s
non-disclosure provisions
empower (but do not mandate)
courts to compel ISPs, banks,
journalists and anyone else sub-
ject to production or preservation
orders or demands in relation to
the gamut of offences, not to
reveal to anyone the contents—
or even the existence—of those
demands or orders for the dur-
ation of the order.
Non-disclosure can be ordered
if a judge or justice of the peace is
satisfied that there are reason-
able grounds to believe that such
disclosure would “jeopardize the

Micheal Vonn, policy director for the B.C. Civil Liberties Assocation, warns parts of lawful access bill may be unconstitutional.

ALISTAIR EAGLE FOR THE LAWYERS WEEKLY

JOINT HEARINGS
Notable approach
sidesteps showdown

PAGE 14

GAMING
Crafting end user
licence agreements

PAGE 20

See Access Page 23

Gag provision may not
allow consultation with
counsel on court order THE LAWYERS WEEKLY Vol. 22, No. 27 NEWS FOR THE LEGAL PROFESSION December 6, 2002

THE LAWYERS WEEKLY

VOL. 22, NO. 27 NEWS FOR THE LEGAL PROFESSION DECEMBER 6, 2002

TAX VIEWS

Law Society search power challenged

VALERIE MUTTON TORONTO

A Toronto family lawyer facing disciplinary proceedings is challenging the Law Society of Upper Canada’s investigative powers, arguing that they violate the Charter of Rights.

The constitutional challenge launched by Jodi Feldman is believed to be the first time the legitimacy of the investigative powers of the regulatory body,

as set out in the Law Society

Act, have been before a disciplinary panel.

The authority to compel the subject of an investigation to turn over privileged communications is at the heart of the Charter challenge, which began before a Law Society disciplinary panel on March 5 in Toronto. The Ontario government, which is supporting the Law Society, has been granted intervener status at the hearing.

Feldman is alleged to have
engaged in professional miscon-
duct during a divorce proceeding,
where she represented the hus-
band. The complaint to the Law
Society was made by the now ex-
wife of Feldman’s client (a publi-
cation ban was imposed on any-
thing that could identify the client
and the complainant).

As part of its investigation, the Law Society seized the entirety of Feldman’s client’s file, including hundreds of solicitor-client privileged e-mails.

Michael Lacy, who represents Feldman, says she is not challenging the right of the Law Society to investigate lawyers, but the scope of its power and its standard for requiring privileged information to be produced.

“The ability to compel the pro-
duction of solicitor-client com-
munications on the basis of a ‘rea-
sonable suspicion’ that the
communications ‘may relate’ to a
complaint does not meet the stan-
See Search Page 2
THE LAWYERS WEEKLY

VOL. 22, NO. 27 NEWS FOR THE LEGAL PROFESSION DECEMBER 6, 2002
Bearing the burden
of combined taxation

PAGE 21

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