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| Marcel Strigberger |
However the lawyers’ main concern appears to focus on police violating solicitor-client privilege.
Egad! Woe is me!
Can we step back a foot or two and get realistic (actually make it six feet please)?
Are some of us forgetting that the purpose of the lockdown regs is to reduce the spread of COVID-19 and not to conduct an office search for confidential information.
I much doubt that suddenly a team of officers would jump into your minimally occupied office like those Monty Python Spanish Inquisitors. Yikes! You insist you are there alone as your presence is essential. An officer says, “I’m not so sure about that. I see you’re working on a will. That means beneficiaries. Where are they hiding?”
The Ontario Bar Association (OBA) is concerned. I understand it is reaching out to government to ensure there is understanding and respect for the rights and protections in law office searches and investigation.
Is not the aim of the lockdown to prevent the gathering of humans, not documents? I have not seen the legislation read something like, “No document indoors can be more than 10 pages long.”
I see the OBA also sent out the Law Society of Ontario’s (LSO) Guidelines for Law Office Searches. That is another story altogether. I reviewed this guideline, and it tells you what to do when the police arrive. I don’t see how this would be of much benefit. For example, suggestions include, “Inspect the search warrant. … Ensure the law office is identified as the place to be searched.” Hey, what other place would it mention? Starbucks?
For that matter, these COVID-19 inspections would not entail the luxury of a search warrant. Presumably, you would just get a surprise visit by an officer, who I suspect, unlike those Monty Python inquisitors, hopefully would not be dressed in one of those elaborate red hassocks and hats. It would be an unexpected visit of course, as the officer might say in response to your surprised query, “Nobody expects a stay-at-home, law office investigation.”
The LSO guideline incidentally also suggests that in certain circumstances the lawyer can tell the police he or she wants the appointment of a referee. It notes that either the lawyer or the police should make the court application for a referee. This suggestion sounds very realistic and helpful. After all, the police have nothing better to do with their time these days. I’m sure they’ll jump at this opportunity. Anyway, who wants a referee? I wouldn’t want some guy in a black and white striped shirt coming to my office and blowing a whistle.
And of course if they need assistance when faced with a search, the guideline notes in bold font that the lawyer should contact the LSO. Just as an experiment I telephoned the LSO, and after hitting a few options, a voice recording said something like, “Due to COVID-19, there may be a greater delay in answering your call.” There was no option such as, “If the COVID-19 police are in your office now, push seven. While you wait offer them a coffee.”
And if you should get that surprise visit, I have a couple of defences you can raise.
The law does still allow playgrounds to remain open. Show the officer your office is a playground. It might be a wise investment to just install a swing or slide in your boardroom. Or decorate your waiting room with a nice sandbox. I know it’s not outdoors, but it does demonstrate your intention to act within the spirit of the law.
As well we know box stores are exempt somewhat from sanctions. I have a garage full of cardboard boxes accumulated over the last 13 months from home deliveries. I’m sure most of us share a similar box population. Bring them to your office and if an officer shows up, say you are selling these boxes. I see nothing in the legislation limiting the definition of box stores to Costco or IKEA.
These are my respectful thoughts. They may or may not all work. However, to get through all of this, I do know that we must think outside the box.
Marcel Strigberger retired from his Greater Toronto Area litigation practice and continues the more serious business of humorous author and speaker. Visit www.marcelshumour.com. Follow him @MarcelsHumour.
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