Law Times

April 29, 2019

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LAW TIMES COVERING ONTARIO'S LEGAL SCENE | APRIL 29, 2019 3 BY ANITA BAL AKRISHNAN Law Times CANADIAN law societies are advising lawyers on how to protect their electronic devices when facing border security agents during travel. The Law Society of Ontario updated its governing board on the issue ahead of a Convoca- tion meeting on April 25. The LSO's agenda referenced a re- port developed at the end of last year and presented recently at a semi-annual spring meeting by the Policy Counterpart Group of the Federation of Law Societ- ies of Canada. In addition to general se- curity tips such as the use of multi-factor authentication, strong passwords and separate accounts or devices for personal and professional matters, the FLSC guidelines also detail steps specifically around protecting solicitor-client privilege. Although the Canadian Bar Association released a report for Canadians in 2017 on privacy at airports and borders, there hasn't been clear guidance from the courts on issues such as ask- ing counsel to unlock a phone, says Gerald Chan, a partner at Stockwoods LLP in Toronto. "The issue comes up when border officers ask counsel or lawyers when they are crossing the borders to disclose the pass- code, and the law on whether they can do so and whether that breaches any constitutional rights remains unsettled," he says. Firms should create a policy about lawyers and staff who are travelling internationally with smartphones or laptops that contain confidential data, the FLSC report said. The report also says lawyers, notaries and paralegals should discuss pro- tecting privileged information during travel with their clients and include the information in their retainer letter. Some firms go as far as providing separate "clean" laptops and phones for trips or getting their cookies, cache and browsing history "fo- rensically cleaned" by a tech pro- fessional, it said. Privileged documents should be marked and lawyers should carry law society member iden- tification cards and business cards to show border agencies that they are lawyers. That's especially the case for travel- lers who are more at risk to be searched: a lawyer that has been in "high-risk" destinations, a single man travelling alone, a lawyer that has multiple devices or hard drives, who bought tick- ets at the last minute or who has "unusual" travel routes, accord- ing to the guidelines, citing re- search from the B.C. Civil Liber- ties Association. The FLSC guidelines say law- yers might consider joining ex- pedited immigration programs such as NEXUS and even opting for a printed itinerary to avoid opening their devices in front of border agents. There are also specific in- structions in the FLSC report on how lawyers should use cloud computing services. The report advises lawyers to keep phones on airplane mode during the immigration process and to delete cloud-based apps, contacts and calendars before crossing the border. "[U.S. and Canadian immi- gration] officers are supposed to look at only information that is on your device, not use the de- vice to access information that is in the cloud," the FLSC report said. Joel Sandaluk, a partner at Mamann Sandaluk Kingwell LLP in Toronto, recommends travelling with few privileged documents, bringing personal documents in hard copy and us- ing a phone as a hotspot for trav- ellers who aren't sure how secure the wireless internet connection is in somewhere such as an air- port lounge. He says he has heard anec- dotes of rough treatment at the border and clients being asked to reveal notes of meetings with their lawyer. He says lawyers should be prepared to give a clear explanation of their travel plans, with documentation, to border officials to avoid trouble. "The problem is that the same way that a certain momen- tum builds up behind positive interactions, a certain type of momentum tends to build up behind negative interactions as well, and those can come back to haunt travellers at subsequent visits to Canada or other coun- tries," says Sandaluk. "So, one of the things lawyers need to be wary of is that they are not only protecting their own selves and their own docu- ments; they also have to worry about protecting their clients as well. The impact of a negative interaction with a border of- ficer on a vacation could be felt by subsequent clients who you are travelling across the border for, in the months or even years to come." If a border officer does ask a legal professional for their elec- tronic devices, the FLSC has several tips on how to interact with the border agencies: Speak up early in the process, "request to see the senior customs offi- cer" and "get a receipt and make sure that you have a detailed de- scription of the device including make, model and serial number." "Do not be intentionally vague to border officers. Legal counsel should be prepared to explain the purpose of their travel, and if appropriate, their connection to a Canadian law practice, without divulging con- fidential client information," the FLSC report says. The report adds that lawyers themselves may want to consult legal counsel if they anticipate refusing to provide a password to an immigration official. Le- gal professionals should also be aware of when they have to report the dispute to the law so- ciety or other regulatory bodies, according to the report. "Because the legality of a po- tential CBSA search of a lawyer or notary's electronic device containing privileged informa- tion has not been tested in court, legal professionals should be wary when crossing the border into Canada," the report says. The Office of the Privacy Commissioner of Canada agreed that the law on the search of elec- tronic devices was "unsettled" as of December 2018. "Canadian courts have gen- erally recognized that people have reduced expectations of privacy at border points. In this context, privacy and other Charter rights continue to apply but are limited by state impera- tives of national sovereignty, immigration control, taxation and public safety and security," the privacy commissioner's of- fice wrote on its website. "The Canadian courts have not yet ruled on whether a border of- ficer can compel a person to turn over their password and on what grounds, so that their elec- tronic device may be searched at a border crossing." Although the issue lacks a court test, the FLSC does en- courage lawyers to reference or even travel with a copy of cor- respondence with Ralph Goo- dale, Canada's Minister of Pub- lic Safety and Emergency Pre- paredness. Goodale has written to the Standing Committee on Access to Information, Privacy and Ethics and the Law Society of British Columbia on the issue of privileged information on de- vices at the border and indicated that officers are told not to in- spect documents if a legal pro- fessional claims privilege. Nader Hasan, a partner at Stockwoods, says taking pre- cautions can go a long way and might not be as onerous as they seem. For instance, he says, iPhones allow a user to remove a work email address from the settings of the mail app and re-down- load the contents of the account when you add the email again later. Such a precaution might not stand up to a forensic expert, but it would hold up to manual search better than "cheater" data-hiding apps — which can actually be red f lags for border officers, he says. "The other thing lawyers should be careful to do is to make sure to assert solicitor- client privilege in the event someone asks to search their phone. It may not prevent the search altogether; however, it is the minimum that we as law- yers can do, to put the state on notice that the device does con- tain solicitor-client privileged material," he says, noting that, although courts have deferred to border agencies in some cases, he thinks things should become stricter over time. LT Gerald Chan says there hasn't been clear guidance from the courts on issues such as border security agents asking counsel to unlock a phone. NEWS 'Legal professionals should be wary when crossing' Guidelines to protect information at borders released JUDICIAL VACANCY ONTARIO COURT OF JUSTICE SIOUX LOOKOUT The Judicial Appointments Advisory Committee advises the Attorney General of Ontario on the appointment of Judges to the Ontario Court of Justice, and invites applications for a judicial position in Sioux Lookout. This appointment involves presiding over criminal and family law matters (approximately 50% criminal and 50% family) and also involves travel within the regional boundaries and elsewhere in the province of Ontario, as assigned by the Regional Senior Justice and/or the Chief Justice. The minimum requirement to apply to be a Judge in the Ontario Court of Justice is ten years completed membership as a barrister and solicitor at the Bar of one of the Provinces or Territories of Canada. All candidates must apply either by submitting 14 copies of the current (July 2017) completed Judicial Candidate Information Form in the first instance or by a short letter (14 copies) if the form has been submitted within the previous 12 months. Should you wish to change any information in your application, you must send in 14 copies of a fully revised Judicial Candidate Information Form. If you wish to apply and need a current Judicial Candidate Information Form, or if you would like further information, please contact: Judicial Appointments Advisory Committee Tel: (416) 326-4060 Fax: (416) 212-7316 Website: All applications, either sent by courier or mail (NO HAND DELIVERY), must be sent to: Judicial Appointments Advisory Committee c/o Ministry of Government and Consumer Services Mail Delivery 77 Wellesley Street West, Room M2B-88 Macdonald Block, Queen's Park Toronto, Ontario, M7A 1N3 Applications must be on the current prescribed form and must be TYPEWRITTEN or COMPUTER GENERATED and RECEIVED BY 4:30 p.m. on Friday, May 17, 2019. CANDIDATES ARE REQUIRED TO PROVIDE 14 COPIES OF THEIR APPLICATION FORM OR LETTER. A Fax copy will be accepted only if 14 copies of the application or letter are sent concurrently by overnight courier. Applications received after this date WILL NOT be considered. The Judiciary of the Ontario Court of Justice should reflect the diversity of the population it serves. Applications from members of equality-seeking groups are encouraged. Untitled-9 1 2019-04-23 3:28 PM

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