Search and seizure by government or police authorities - International Law Office

Introduction
Objectives
Investigator's arrival
Search
Scope
Caution


Introduction

All searches or seizures must be expressly authorized by an 'authority' - a statute, order or warrant. The authority may give investigators the right to access premises and records. It is often an offence to refuse authorized access, obstruct an authorized investigation or hide or destroy documents relevant to the inquiry. Powers of investigators vary depending on the statute under which they are acting.(1)

Objectives

If a company finds itself under investigation, the following key objectives should be taken into account in order to manage the situation effectively:

• Appoint a knowledgeable representative to be in charge.
• Comply with the law while avoiding unnecessary disclosure which may prejudice the company's rights.
• Avoid obstructing the investigator.
• Limit disclosure to accurate and relevant information and protect privilege.
• Obtain the investigator's cooperation and permission to list and make copies of seized documents and notes of any interviews.
• Create a complete and accurate record of what was reviewed, taken and said.

Investigator's arrival

When dealing with investigators companies should do the following:

• Be courteous.
• Refer them to the responsible corporate representative and immediately invite them to a room away from ongoing business and company records. Control all contacts and activities until the designated representative is present.
• Obtain the names, titles, addresses and official identifications of the investigators.
• Ask for the purpose of the inspection or search. Is it a normal compliance inspection or is it a search for evidence of a possible violation of the law?(2)
• If it is an investigation of a possible offence, ask to see a copy of the search warrant or written authority permitting the search. If there is no such document but the investigator is acting under the authority of a statute, obtain the name of the statute and the specific sections relied on. In the absence of a valid statutory authorization a warrant should be obtained.
• Ask to see a copy of any information or background documents on which the search was authorized.(3)
• Make a copy of the warrant or a note of the authority and any other statements of the investigator as to:
  • the date of the warrant or authorization;
  • the name of the issuing authority;
  • the offence or suspected offence in respect of which the search is being made;
  • the names of suspected offenders;
  • the description of the documents or items sought by the investigators;
  • the places authorized to be entered or searched;
  • the names or functions of persons to be questioned; and
  • the period in which the search may be conducted.
• If the warrant or authority does not provide a definite time period for its execution, ask for a reasonable opportunity to obtain the documents specified in the authority or to produce required witnesses or information.(4)
• Call a lawyer. Advise him or her of the information obtained and ask him or her to address any problems and to arrange for a reasonable response time. If satisfactory protections are not agreed to, have the lawyer attend at the premises immediately. If he or she cannot arrive before the search starts, ask the investigator to speak to the lawyer with a view to agreeing on the scope of his or her powers and search procedures. Then speak privately with the lawyer about the scope and procedures for the search and the advisability of an immediate application to the court to challenge it.

Search

While a search is being conducted, companies should adhere to the following steps:

• Appoint a lawyer or a responsible representative to monitor and host the investigators.
• Direct the investigators to the location of the designated documents and data and introduce the people to be questioned. The host should take the investigators directly to the area of interest (avoiding an office tour) and, if possible, arrange for an isolated work area.
• Do not leave the investigators alone with the documents. Have a staff member or someone from the lawyer's office with all investigators.
• Advise relevant staff of the investigator's presence and of the need to refer all enquiries to the designated company representative or lawyer.
• Review the contents of each file before it is handed to or seized by the investigator to ensure that they fall within the authority and are not privileged. The company is entitled to a reasonable opportunity to review documents to determine the investigator's right to them and to object to the seizure of files and documents if such opportunity is denied or the document is not within the scope of the authority.
• Make a list of all documents, samples, tests and items reviewed or seized by the investigator.
• Make detailed notes of all comments by the investigator and interviews with employees.
• Ask the investigator's permission to make a copy of each document which is proposed for seizure (including privileged documents over which you claim privilege which have been placed in a sealed envelope).
• Have the investigator acknowledge receipt on your copy of the list of seized items and documents, including the list of all disputed documents placed in the sealed envelope.
• Immediately after the search prepare a detailed memo for the lawyer of the search details including the steps recommended in this update.

Scope

An inspection should be limited to matters relevant to its stated purpose. A search or seizure under a Criminal Code search warrant is limited to those items set out in the search warrant and other items in plain view during the search which may be evidence of an offence. A search under the Provincial Offences Act does not extend to seizure of documents in plain view.

Privilege
The company should claim solicitor-client privilege for: (i) all correspondence or communications between the company and its lawyer or relating to obtaining legal advice; and (ii) all privileged or confidential documents prepared at a lawyer's request or under his or her supervision or for the purpose of preparing for contemplated legal proceedings.

Where privilege may apply, the company should insist that all such documents be separated from other documents and remain unread and uncopied by the investigators. If the investigators persist in seizing such documents, number and list each document indicating the date, author and addressee and retain a copy of the list. The company should deposit contested documents in an envelope, to be sealed and deposited with a neutral third party at the conclusion of the search.

Photographs and samples
The company should take similar photographs and obtain duplicate samples of anything seized.

Computers
The power to search premises generally includes the right to use or cause to be used computers. A company can object to the use of computers by an unqualified person; it may obtain a court order specifying those people who may operate it. If discs or drives are seized, the company should keep a duplicate.

Statements to inspectors and investigators
Many statutes do not give investigators the right to question employees in the course of a search. Unless specifically authorized, it is wise to advise employees not to engage in any substantive discussions with the investigator.

If the investigator has the power to interview employees the company should bear the following points in mind:

• Direct the investigators to those employees most knowledgeable about the situation.
• Arrange for questioning in a neutral office to avoid uncontrolled access to files.
• Ask to have the company's representative present during any interview. If excluded, the company is entitled to interview the employee separately before and/or after the investigators' interrogation.
• Interfering with investigators' questioning of employees is not permitted. However, employees may be advised to answer only the questions asked and to give only their personal information.
• Ask the investigator for copies of employees' statements or make notes or recordings.
• The employee is entitled to legal advice but, if such advice is provided by the employer's lawyer, the employee should be warned of the lawyer's conflict of interest, and the lawyer's duty to disclose to the employer.
• Senior officers and employers who in effect represent the company in the matter under investigation should not give any oral statement until they have had an opportunity to discuss the matter with the company's lawyer and ensure the accuracy of their response.
• Except in an emergency, if asked for information employees should state that they do not wish to hinder or obstruct the investigation but wish to ensure that they give correct information; they should make a note of the specific questions and indicate that they will respond promptly. If the investigator presses for information, insist on obtaining legal advice before giving the information.
• No one is obliged to make any statement after being cautioned, since they could be charged personally.
• No one is obliged to sign any statement given to an investigator.

Caution

The comments in this update are general and are not a substitute for legal advice. If confronted with an investigator or a demand to search your premises or records, you should contact your lawyer as soon as possible for advice on your rights and obligations.

For further information on this topic please contact R Nairn Waterman or Frank Palmay at Lang Michener LLP by telephone (+1 416 360 8600), fax (+1 416 365 1719) or email (nwaterman@langmichener.ca or fpalmay@langmichener.ca).

Endnotes

(1) This update may assume some powers which the investigator does not have under certain authorities; for example, some authorities do not require oral statements or interviews.

(2) A compliance inspection is normally a routine procedure without a search warrant and will not ordinarily justify legal intervention.

(3) The investigators may refuse.

(4) The investigators may refuse where circumstances or nature of the search do not permit such a delay.