Lawyer loses appeal, fails to expand internet privileges

Lawyers say a recent appeal in a child pornography case highlights the complexity of how courts treat police searches and internet restrictions, particularly when the accused is a lawyer.

Lawyer loses appeal, fails to expand internet privileges
A lawyer has lost his appeal over a conviction for possessing child pornography.

Lawyers say a recent appeal in a child pornography case highlights the complexity of how courts treat police searches and internet restrictions, particularly when the accused is a lawyer.

In R. v. Schulz, 2018 ONCA 598, Martin Schulz, an Ontario lawyer, appealed his conviction of one count of possession of child pornography and the sentence he received, which included 45 days of imprisonment on the weekends, three years’ probation and a 10-year prohibition with limitations on internet and email access.

In the interim of the appeal, Schulz was still in private practice, according to the Law Society of Ontario’s directory, although he is restricted from representing minors.

Because he is a lawyer, Schulz’s sentence means that he is practising law while facing restrictions to his internet usage.

Further, Schulz argued in his appeal that, as a lawyer, the seizure of his devices by police in 2012 and search of his devices by a designated examiner in 2013 could have exposed the privileged information of his clients.

Schulz said the search violated his s. 8 rights under the Canadian Charter of Rights and Freedoms.

In his appeal of his internet usage probation, Schulz also said he was at low risk to reoffend and noted that the internet is “an indisputable component of everyday life.”

The conviction appeal was dismissed by Court of Appeal justices David Brown, David Watt and Grant Huscroft, in a decision published on June 29. Schulz was granted leave to appeal the internet limiting terms, but the sentence appeal was ultimately dismissed.

“The sentencing judge considered the relevant factors and crafted an order that reasonably attempted to minimize the risk the appellant poses to children and responded to his specific circumstances,” said Brown, with Watt and Huscroft concurring.

In the Court of Appeal ruling, it was noted that Schulz was accused of possessing 101 images and 155 videos of child pornography, consisting of 45 unique images and 111 unique movies.

Police got a warrant to search Schulz’s home for evidence of possession of child pornography on devices and in documents, the ruling said.

The warrant included provisions to protect solicitor-client privilege, said the ruling, including a requirement that the police seal all seized items, unread, until further order of the court.

Lawyers say the Court of Appeal ruling is the latest example of how technologies such as digital files and online databases fit into established case law surrounding search and seizure and probation.

“Definitely, solicitor-client privilege is a special animal,” says Megan Savard, a partner at Addario Law Group LLP. Although Savard declined to comment on whether the outcome of the case was correct, she says that there’s “almost nothing more invasive than a search of a digital device, regardless of whether there’s privilege.

“[T]o the extent we can take the protections extended to lawyers [and] apply them to other searches to digital devices, that’s something we should be doing,” she says.

William McDowell, a partner at Lenczner Slaght Royce Smith Griffin LLP, says it is important to protect privilege when searching lawyers’ offices. McDowell says the courts have worked out a way to do it over the past three decades.

“The Supreme Court, in a series of cases, has said that solicitor-client privilege is to be protected in a manner as close to absolute as possible. That’s the standard. And the Court of Appeal here effectively said that was done,” McDowell says.

“There were a couple of minor things, they point to a few slips . . . but they say that’s not enough to warrant a constitutional remedy. To me, that’s the just the Court of Appeal applying the existing law from the Supreme Court.”

Schulz, who represented himself in the appeal, took issue with several aspects of the way the search was conducted. But the trial judge determined that only some of the issues raised by Schulz were s. 8 violations.

“I do not find that there was an overall pattern of conduct on the part of police which would impact public confidence in the administration of justice,” wrote the trial judge, Justice Gisele Miller of the Superior Court of Justice.

As a result, the trial judge only excluded evidence from the six unsealed items and “the devices on which no offensive materials were found.”

“There was a challenge to the search of various electronic devices that a lawyer possessed . . . The Court of Appeal said on that issue that deference be given to the sentencing judge — that she considered all the relevant part of the issue and, therefore, that was dismissed,” says Robin McKechney, partner at Steinecke Maciura LeBlanc Barristers & Solicitors.

The second part of Schulz’s appeal centred on his restriction from internet usage.

The probation order says Schulz is limited from using “any device capable of accessing the Internet or email and capable of storing data in a digital format,” including computers, electronic media, cameras, PDAs and scanners.

The order includes exceptions for use in the office or for employment-related purposes, communicating with legal counsel, reviewing legal documents and obtaining legal advice.

The order says Schulz must prove to his probation officer that he has installed protection software on his computer and that police and probation officers can search Schulz’s computer “subject to reasonable precautions being taken to protect solicitor/client privilege respecting any client documents on those computers.”

The appeal judge opted not to interfere with the sentencing judge’s decision, writing that the sentencing judge “considered the relevant factors and crafted an order that reasonably attempted to minimize the risk the appellant poses to children and responded to his specific circumstances.”

Neither Schulz nor Grace Choi, who represented the Crown, offered comment on the case before deadline.

“The Court of Appeal said that, again, the trial judge or the sentencing judge applied all of the appropriate factors  and gave deference to her — and although they gave leave to appeal that part of the sentence, they dismissed the appeal,” McKechney says.

“The Court of Appeal generally will grant leave on sentence appeals, but that doesn’t mean you’ve won the appeal.”

Nader Hasan, partner at Stockwoods LLP, said the decision was interesting “both from the conviction appeal perspective and also on the sentencing.

“A lawyer’s phone and computer is really no different from their office. Increasingly, in this day and age, a lawyer’s office is where their computer and phone happen to be,” he says.

McDowell says he thinks it’s true that all advocates and litigators have to have access to the internet to practice.

He also says that he thinks restricting internet usage to employment purposes seems to be a reasonable way of balancing the risk of reoffending against the real needs that a lawyer has.

“As a practical matter, access to the internet has replaced the law library,” McDowell says.

“It’s interesting, the court seems to accept that without question. Because the court of appeal observes how the trial judge crafted a remedy that still allows the lawyer access to the internet, there was no suggestion that he didn’t need it . . . or that it was unreasonable for him to insist that he have it.”

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