Lawyers need to take care with devices at borders

Law is unclear about searching personal information on electronic devices

Lawyers need to take care with devices at borders
David Young says lawyers shouldn’t assume that any information they are carrying, including information covered by solicitor-client privilege, is protected from search at a border

A Toronto lawyer has gone to Federal Court for clarity after his devices were seized at the border on his return to Canada.

Nick Wright, principal of Wright Business Law in Toronto, says he was coming back to the city in April after working remotely from Guatemala and Columbia. Wright says he had his phone and laptop seized after he refused to provide the passwords for the devices to a customs officer, because both devices contained information covered by solicitor-client privilege.

In May, he and another lawyer filed an application in Federal Court.

They sought a ruling that the practice of searching any personal information contained in files on electronic devices without probable cause or warrants is in breach of the Canadian Charter of Rights and Freedoms.

“It’s important because I think we all have a duty as Canadians to stand up for individual rights and civil liberties, and to defend our Constitution, because if we don’t then our rights and freedoms that are foundational to Canadian society are quickly eroded,” he says. Wright also sought a ruling that searching materials covered by solicitor-client privilege, “contrary to the process determined in previous cases,” is a breach of the Charter under s. 7 and 8, as well.

“I think it’s outrageous that the Canadian government is engaged in this unconstitutional practice,” he says.

“The fact that they’re attempting to rely upon 30-year-old case law prior to cellphones to argue that they should have full access to all information on all devices is equally outrageous. . . .”

Wright is not alone in his concerns.

In a report from December 2018 from the Federation of Law Societies of Canada, it’s noted that Canadian lawyers and Quebec notaries “face increasing uncertainty about how these electronic devices will be treated by border agents on apprehension by Canadian Border Security Agency officers on return to Canada.” 

“Searching the electronic device (including smartphones, laptops and USB sticks) of a legal professional may infringe solicitor-client privilege when that legal professional crosses borders,” says the report from December 2018.

It also notes that a “review of information available through other sources and correspondence from Minister [of Public Safety and Emergency Preparedness Ralph] Goodale suggests that solicitor-client-privileged information is subject to special rules.”

“However, the policy does not completely exempt a legal professional’s electronic device from a border search and there are concerns that adequate protections are not in place,” says the report.

The Canadian Bar Association also recently released information for lawyers about what they should do while travelling, which includes cleaning information off their devices beforehand.

Federal legislation around privacy rights for lawyers and their electronic devices at the border remains unclear, says Toronto lawyer David Young. He says lawyers shouldn’t assume that any information they are carrying, including information covered by solicitor-client privilege, is protected from search at a border.

“[The federal Customs Act] says you can search goods without a warrant, and a cellphone is treated as a good, but it has information on it,” says Young, who practises with David Young Law.

Young says customs officers rely on the federal act to search the contents of cellphones.

He points out that the act is outdated and is framed around analogue technology.

For example, he says it permits searches of sealed documents only on suspicion of wrongdoing or with a warrant.

“The U.S. rules are probably more invasive than Canadian, less protective, more explicitly permissive, so if you’re travelling to the U.S. you probably have less rights than if you’re coming back into Canada . . .” says Young.

Nicholas Dorion, a spokesman for the Canada Border Services Agency, says “all travellers, and their goods, seeking entry to Canada may undergo a more in-depth examination.”

“Electronic devices and media, including laptops, cellphones and other devices are considered 'goods' in the context of the border and BSOs have the lawful authority under s. 99 of the Customs Act to examine them when warranted,” he says.

“The examination of electronic goods is a method used to uncover a range of border-related offences, ranging from electronic receipts proving that goods were undervalued or undeclared, the interception of prohibited goods contained within the devices themselves (e.g. child pornography and hate propaganda).”

For his part, Wright says it’s time the federal government “step up and implement the parliamentary report that was done on this very issue that came up with some very practical and reasonable changes that would address these concerns.”

The report — from December 2017 — recommended that the federal government track the number of examinations of electronic devices happening at the border, and to share these statistics with the Privacy Commissioner of Canada. It also recommended the federal government consider creating internal privacy and civil liberties officers within the CBSA.

“Additionally, I think that it’s time that the court rule on this practice, and it’s my belief that this application will ultimately get a court decision stating that the CBSA’s practice is unconstitutional and unlawful,” he says. 

Lawyers have obligation under the Rules of Professional Conduct to maintain solicitor-client privilege, he says.

“Solicitor-client privilege is . . . of the utmost importance in the free and democratic society and a fundamental principle of justice, and it’s for the benefit of clients, so individuals,” he says. “In an adversarial system like we have, it’s important that the public be able to consult with their lawyers, in order to participate in the legal process and to have the federal government thieving solicitor-client privilege information undermines our legal system and undermines the adversarial process.”

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