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LSBC wants assurances for lawyers crossing border with electronic devices

President says solicitor-client privileged information could be on devices
|Written By Alex Robinson

The Law Society of British Columbia is calling on the federal government to guarantee border agents will not ask lawyers to provide passwords to their electronic devices when crossing the border.

Herman Van Ommen has called on the government to amend its operational bulletin concerning searching digital devices to bring it in line with United States Customs and Border Protection.

Herman Van Ommen, the president of the law society, voiced concern about the issue in a letter to the federal government, after reports that Canada Border Service Agents had been asking for travellers’ passwords to digital devices. The law society is worried that this practice could have detrimental effects on client-solicitor privilege if applied to lawyers.

“As the Supreme Court of Canada has made clear, solicitor client privilege is a principle of fundamental justice and is a civil right of supreme importance in Canadian law,” Van Ommen said in a letter to Minister of Justice Jodi Wilson-Raybould and Minister of Public Safety Ralph Goodale.

“Its protection must be as close to absolute as possible.”

The government has said that travellers are legally obligated under section 99 the Customs Act to present their digital devices as they would any other goods when crossing the boarder, and that the act gives agents the right to examine them.

Van Ommen, however, said this section does not specifically authorize access to privileged documents.

In the United States, the policy of U.S. Customs and Border Protection concerning inspecting devices says that CBP officers must “strictly adhere to all constitutional and statutory requirements, including those that are applicable to privileged, personal, or business confidential information.”

But in Canada, it is less clear whether devices that contain privileged information will be exempt.

An operational bulletin issued by CBSA in 2015 said that while customs officers cannot arrest travellers for refusing to provide a password, they can confiscate the device for further examination.

The bulletin also said that passwords “are not to be sought to gain access to any type of account (including any social, professional, corporate, or user accounts), files or information that might potentially be stored remotely or on-line.”

CBSA policy states that examinations of devices should not be conducted routinely and that they should only be conducted when there are grounds that “evidence of contraventions may be found on the digital device or media.”

In his letter, Van Ommen asked that the government make assurances that if lawyers refuse requests for passwords, agents will not confiscate the devices or detain the lawyer.

“By refusing access to the password, the lawyer is only discharging his or her professional obligations as required by the various codes of professional conduct across the country,” he wrote.

He also called on the government to amend the bulletin to bring it in line with the American policy on privileged information.

Scott Bardsley, a spokesman for Goodale, said in an emailed statement that CBSA officers are trained to conduct all border examinations with “as much respect for privacy as possible.”

“By law, the only purpose of such an examination can be to enforce CBSA-mandated legislation that governs the cross-border movement of people and goods, notably the Customs Act and the Immigration and Refugee Protection Act,” he said.

“Officers are prohibited by law from conducted examinations for the sole or primary purpose of looking for evidence of a criminal offence. Officers are required to document the reasoning for a search and how it is conducted.”


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