President’s Blog
May 04, 2017

by Herman Van Ommen, QC

Earlier this week I sent the federal Minister of Public Safety and the Minister of Justice and Attorney General a letter on behalf of the Law Society setting out concerns about searches of electronic devices at the Canadian border.

The Law Society has received reports that the Canada Border Services Agency has from time-to-time been asking people to provide passwords to their electronic devices as they cross the border into Canada. These requests are authorized by section 99 of the Customs Act. That section does not specifically authorize access to privileged goods or documents. Our Rule of Law Committee has pointed out, and I note in the letter, that a CBSA operational document does not specifically advise agents that access to privileged information should be excluded from such requests.

Solicitor-client privilege is a fundamental principle of our justice system, and its maintenance is integral to the public's confidence in the administration of justice. The Supreme Court of Canada has said that in order for it to be meaningful, solicitor-client privilege must remain as close to absolute as possible. Section 99 of the Customs Act creates no specific authorisation to access privileged information and provides no mechanism to protect privilege.

I therefore urged the ministers to provide assurances that CBSA agents will not seek to obtain passwords from lawyers to their electronic devices when crossing the border into Canada, and that if such a request is made and a lawyer refuses it border agents will not confiscate the electronic device or otherwise detain the lawyer.

CBSA agents perform a crucial role in protecting Canada’s borders, and electronic devices represent an important new frontier in data collection. However, these devices are equally vital to the work of lawyers and to their communications with clients. While I believe the law and legal precedent clearly protect solicitor-client privilege, there can be no room for doubt. Border agents must receive clear instructions from the highest levels that that they do not have statutory authorization to access privileged information.

A copy of my letter to the federal ministers is available here.