III. Other Procedural Reforms to the POA and its Rules and Regulations

A. Non-Structural Process Improvements

This Report makes broad recommendations for modernizing key aspects of the POA. We have focused primarily on structural and major process reforms that we hope will support the fair and efficient enforcement of regulatory statutes for years to come. Several other procedural issues were raised in our consultation paper and during the course of our review, but it is beyond the scope of this Report to canvas each in detail. We are also cognizant of our recommendation that the POA be simplified and that the detailed procedural code be transplanted to a single set of POA rules or a single regulation. We do not recommend which body should be responsible for developing the newly updated POA procedural code, given that the issue of who should be making rules of court is a broader policy issue that transcends the POA and could impact how criminal, civil and family rules are made. Instead, we recommend that the Attorney General and Chief Justice of the Ontario Court of Justice jointly agree on how the newly updated POA procedural code should be established and by whom, and we note the characteristics that ought to be the hallmark of any new rule-making body: independent, inclusive, expert and efficient.

In our view, the body responsible for this important work will be in an excellent position to analyze the following further areas of reform, equipped with its own expertise and the POA Reform Framework as a guiding set of principles. Some issues, such as the establishment of a “paralegal-client” class privilege, will have implications beyond the enforcement of provincial offences and it may be that they are ultimately considered by another body for further analysis or the court through the common law. For these reasons, the majority of the following recommendations refer the issue to the body responsible for making the new POA procedural code or the Ministry of the Attorney General. To assist that body, we describe the potential procedural reform areas that were raised with us and touch briefly upon some legal and policy considerations for each.

B. Modernization of the Search Warrant Provisions

1. Search and Seizure of Electronic Data

The use of computers and the electronic storage of data has been a major technological advance since the POA came into force in 1980. As a result, some of the search warrant provisions appear to be outdated and in need of reform. We discuss two issues: (1) what is seized when a search warrant is issued to obtain electronic data on a computerized system or device; and (2) what parameters ought to be placed within a search warrant so that it is not an overly intrusive invasion of privacy.

Sections 158 to 160 of the POA deal with search warrants. There is no specific provision that deals with the search of computers or electronic data. Subsections 158(1) and (1.1) of the POA would appear to apply when a search of information from computerized systems is needed, but they deal with “things” and do not specifically address electronic data. They state:

(1) A justice may at any time issue a warrant under his or her hand if the justice is satisfied by information upon oath that there are reasonable grounds to believe that is in any place,

(a) anything on or in respect of which an offence has been or is suspected to have been committed; or

(b) anything that there are reasonable grounds to believe will afford evidence as to the commission of an offence.

(1.1) The search warrant authorizes a police officer or person named in the warrant,

(a) to search the place named in the information for any thing described in clause (1); and

(b) to seize the thing and deal with it in accordance with section 158.2. [emphasis added]

The LCO heard from prosecutors who say that in the absence of clear authority, investigators are seizing hard drives and “imaging” those hard drives rather than simply copying the data which would be less disruptive and intrusive to the defendant and easier for investigators. If this is the only approach authorized under the POA, it confirms the practical difficulties raised by prosecutors. Moreover, electronic data today are often saved on remote computer servers rather than individual, stand-alone computers, which can be more difficult to locate and physically seize.

In a 2007 Ontario Court of Justice criminal case involving searches of computers, the court acknowledged the problem with the traditional use of search warrants in a computerized age. It noted that warrants have traditionally been directed at a particular thing or documents in a defined location, but that computer technology “frees evidence and information from such physical limits and allows data to reside in various places on different media with no version representing an obvious original.” The court concluded that Criminal Code search warrant scheme was “originally designed to deal with physical manifestations of privacy, [but] it does not always blend easily with the world of ‘virtual evidence.’” [538]

These same challenges arise in the POA context. One solution is to expressly amend the POA to permit “electronic data” from computerized systems to be copied and searched, instead of seizing the computerized equipment itself. In 1997 the Criminal Code was amended to deal specifically with searching computer systems and the seizure of data.[539] Subsections 487 (2.1) and (2.2) state:

(2.1) A person authorized under this section to search a computer system in a building or place for data may

(a) use or cause to be used any computer system at the building or place to search any data contained in or available to the computer system;

(b) reproduce or cause to be reproduced any data in the form of a printout or other intelligible output;

(d) use or cause to be used any copying equipment at the place to makes copies of the data.

(2.2) Every person who is in possession or control of any building or place in respect of which a search is carried out under this section shall, on presentation of the warrant, permit the person carrying out the search

(a) to use or to cause to be used any computer system at the building or place in order to search any data contained in or available to the computer system for data that the person is authorized by this section to search for;

(b) to obtain a hard copy of the data and to seize it; and

The provisions in the Criminal Code offer a good starting point for POA amendments that would allow “data” to be copied from computers or