CBA efforts
The CBA has been concerned about the vulnerability of confidential client information and solicitor-client privilege at the Canada / U.S. border for many years.
In 2013, it passed a resolution urging the Minister of Public Safety and the President of the Canadian Border Services Agency to recognize claims of solicitor-client privilege relating to electronic documents and to establish a policy requiring border services officials to destroy privileged documents promptly once it was determined that the communications did not provide evidence of a “goods” violation.
CBA Resolution 13-07-A, Solicitor-Client Privilege Claims at the Canadian Border
In September 2017, CBA representatives presented a submission, “Privacy of Canadians at Airports and Borders”, to the House of Commons Standing Committee on Access to Information, Privacy and Ethics. This was a combined effort of many CBA sections.
In this submission, the CBA noted that Operational Bulletin PRG-2014-07 provides insufficient guidance to Canada Border Services Agency officers on solicitor-client privilege and contains misleading and conflicting information. The CBA recommended that the government develop a comprehensive, publicly-available policy for searches at the Canadian border that involve privileged information.
The CBA Ethics Committee has been working on this issue and prepared this Toolkit to inform lawyers about the challenges they may face at the U.S. / Canada border.
Please get it touch with lawreform@cba.org with experiences that you have had at the border involving your device and border services officer requests to look at its contents. We will continue to work on this issue and your input would be greatly appreciated.