LexSage

The CBSA publishes statement that CBSA

officers must stop searching solicitor-client

electronic documents

Written By: Cyndee Todgham Cherniak

Date: April 18, 2020

Technology is wonderful. Laptop computers are getting lighter.  Storage capacity on laptop computers, smart phones, USB keys and other electronic devices are up in the terabytes.   You can travel with your electronic devices and no one will know you are not in the office.

What this means is that we can travel with vast amounts of personal data (and client documents) dating back to (or before) the purchase of an electronic device.  From one electronic device, you (or the Canada Border Services Agency (“CBSA”), U.S. Customs and Border Protection (“US CBP”) and other border officers) can access every email, text message, document, bank statement, health report, credit card statement, invoice, photo, contact, calendar entry, call history, voicemail message, to-do notation, book, magazine, internet search, app data, Facebook post, Twitter post, Netflix download history, stored password, and other information stored on your electronic device.  If your electronic device has GPS, the geo-locations of your travels can be downloaded. Your electronic device may be cloud enabled and may synchronize with or open the door to data stored elsewhere (that is not on the electronic device with which you are travelling). Certain deleted data can be retrieved with relative ease.

Recently, the Canada Border Services Agency (“CBSA”) published a written statement on its website that when the CBSA conducts an examination of electronic devices (e.g., laptops, smart phones, USB keys, etc.) at the Canadian border, CBSA officers must not search electronic documents marked as “solicitor-client”.  This is good news for lawyers who have been without any guidance when returning to Canada from overseas travel. 

The CBSA has published a webpage entitled “Examining digital devices at the Canadian border” in which it clearly states the following:

“Solicitor-client privileged information

The CBSA is committed to respecting privacy rights while protecting the safety and security of the Canadian border. If a BSO encounters content marked as solicitor-client privilege, the officer must cease inspecting that document. If there are concerns about the legitimacy of solicitor-client privilege, the device can be set aside for a court to make a determination of the contents.”

What this means is that lawyers now are able to refer to a public document when informing a CBSA Officer that they should limit their examination of electronic devices.  It also means that content on a lawyer's laptop or smart phone must be marked as “solicitor-client privilege”. 

We recommend that should lawyers travel with an electronic device such as a laptop, that they travel with a clean laptop used only for cross-border travel. On that laptop, there should be a folder clearly named or marked “Solicitor-client privileged documents”.  Only bring what is necessary for the travel.  Put all client-related documents in that folder and do not put personal documents in the folder.

The same holds for clients who have electronic documents from their lawyer or that were prepared in connection with litigation. travel with a clean laptop used only for cross-border travel. On that laptop, there should be a folder clearly named or marked “Solicitor-client privileged documents”.  Don't bring these documents with you when you travel unless it is necessary.

When traveling with paper documents, have a folder labelled “solicitor-client privilege”.  It is not very costly to obtain a stamp for file folders and envelopes.

If you are a lawyer (including inhouse counsel) and you are stopped by the CBSA and the officer asks for you to input your password so that they can examine an electronic device, tell the CBSA Officer that you are a lawyer and that you have solicitor-client materials on your electronic device.  If you are a client, tell the CBSA officer there is a folder marked "solicitor-client" that should not be searched as per CBSA policy.

For more information about laptop and smart phone searches that the Canadian border, please contact Cyndee Todgham Cherniak at 416-307-4168 or at cyndee@lexsage.com.

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