Coming back to Canada
Your device is a “good”
When you return to Canada, a Canadian Border Services Officer may ask you to hand over your device. The device is considered a “good” and subject to examination.
An officer may
(a) at any time up to the time of release, examine any goods that have been imported and open or cause to be opened any package or container of imported goods and take samples of imported goods in reasonable amounts
Section 99(1)(a), Customs Act, R.S.C. 95, c-1
The inclusion of a device in the definition of “good” was affirmed by the federal Minister of Public Safety, Ralph Goodale, in a letter to the president of the Law Society of British Columbia, dated June 28, 2017:
Paragraph 99(1)(a) of the Customs Act allows BSOs [border services officers] to examine any goods that have been important into Canada to ensure compliance with our laws. A “good” is defined as any document in any form, and it therefore includes electronic media and their content. The examination of electronic goods can uncover a range of customs-related offences, from electronic receipts proving that goods were undervalued or undeclared to the interception of prohibited goods contained with the devices themselves (child pornography, obscenity, etc.).
Canada Border Security Agency directives
In 2014, the Canada Border Security Agency adopted an Operational Bulletin specific to “Examination of Solicitor-Client Privileged Materials”. The two-page directive provides limited guidance on how border officials are to handle these materials and has been the subject of ongoing CBA efforts to ask the government to bring more clarity to the situation.
A 2015 directive to Canadian border services officers tells them what to do when examining a device, and how to secure evidence. It says they should act with “as much respect for the traveller’s privacy as possible, considering that these examinations are usually more personal in nature than baggage examinations.”
The Operational Bulletin also says 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.”
Canada Border Services Agency, Operational Bulletin, PRG-2015-13, Examination of Digital Devices and Media at the Port of Entry: Guidelines, June 30, 2015.
On the topic of privileged materials, the federal Minister of Public Safety Ralph Goodale wrote in his June 28, 2017 letter:
CBSA officers are exposed to the importance of solicitor-client privilege at several points during their training. Officers are instructed not to examine documents if they suspect they may be subject to this privilege, if they are specifically marked with the assertion that they are privileged, or if this privilege is claimed by a lawyer or notary with respect to documents carried by these individuals.
The Minister went on to write that Canada Border Security Agency policy is not to examine electronic goods “as a matter of routine”. There have to be indicators that suggest “evidence of contraventions” and a “clear link to administering or enforcing CBSA-mandated program legislation that governs the cross-border movement of people and goods”.
Nevertheless, the best practice to avoid disclosure of client information or a breach of solicitor-client privilege is to travel with a clean device. In that case, when a border services officer asks for your device, hand it over and provide the password. For devices protected by fingerprint or voice recognition, explain this to the officer, who will ask you to open your device and hand it over promptly.
Should you have failed to clean your device and are asked to hand it over to a Canadian border security officer:
- Identify yourself as a legal professional to the border official. Show your professional identification.
- Explain that your device includes confidential client information. When it also includes documents covered by solicitor-client privilege, say so. Describe how to identify protected documents. This will be easier when you have a system in place that segregates and labels them.
- Ask the purpose of the search.
- Appreciate that the border official may not know about CBSA’s Operational Bulletins, the Minister of Public Safety’s June 28, 2017 letter, or about the special protections related to lawyers’ privileged communications with clients.
- Consider what to do. When you don’t hand over your device, you may raise suspicions. When you do, everything on your device may be copied and analyzed.
- Recognize when the situation is problematic and there is a serious risk of breaching your duty of confidentiality and compromising solicitor-client privilege. Ask to speak to the border official’s supervisor. Think about how you might bring the situation before a court so that a judge may decide how to proceed.
- Contact your professional regulatory body practice advisor for advice.
When you are returning to Canada, Canadians citizens and permanent residents cannot be denied entry into Canada. You will be allowed in. However, your device may end up being held by Border Services.