Law Times

Law Times • June 13, 2016 Page 11 www.lawtimesnews.com FOCUS Lawyers can protect private information Privilege jeopardized by border searches BY GABRIELLE GIRODAY Law Times F or Canadian lawyers who work outside the country, border searches can be a fraught area. Currently, there is no policy in place that protects lawyers' solicitor-client privilege when customs officers want to search their electronic devices, or their contents, at the border. With recent developments such as the Panama Papers leak, Toronto lawyer Cyndee Todgham Cherniak says the is- sue of solicitor-client privilege is more timely than ever for law- yers concerned about protecting their clients' privacy. "The CBSA and Justice want to be able to stop lawyers and look in their briefcases, and look on their laptops and look on their iPhones," says Todgham Cherniak, founder of LexSage PC and past chairwoman of the Canadian Bar Association's commodity tax, customs, and trade law section. Her complaints aren't new. The CBA had pushed the former federal Conservative govern- ment to develop a policy to ad- dress the issue, to no avail. It has now taken up the charge again with the Liberal government. "Canada does not have a de- fined policy for searches at the Canadian border that involve information protected by solic- itor-client privilege," according to a February letter from the CBA to Minister of Public Safe- ty and Emergency Preparedness Ralph Goodale. "The U.S. Department of Homeland Security issued policy directives in 2009 detailing what constitutes a lawful search and the process governing the review and detention of (electronic) de- vices that are reviewed and de- tained at the Canada-US border." The CBA would like to see a working group established to "define the issue of solicitor-cli- ent privilege claims at the Can- ada-U.S border and to establish an official government policy on the matter. "The current situation jeop- ardizes the privilege that is a pillar of our legal system and es- sential to protect," said the letter to Goodale. The CBSA says its officers "have the legal authority under [s.] 99 of the Customs Act to examine personal baggage, con- veyances, and goods, including electronic storage devices, upon arrival into and on departure from Canada." Esme Bailey, a CBSA spokes- woman, told Law Times in an e-mail: "CBSA officers conduct examinations to verify that a person is compliant with the laws and regulations adminis- tered by the CBSA. This could include the examination of elec- tronic storage devices that may contain prohibited material (e.g. obscene material, hate propa- ganda, child pornography). "The search of a computer is a routine border search, similar to routine searches for firearms, explosives, narcotics, and unde- clared goods that a traveller may seek to smuggle into Canada." So far, Goodale has not com- mitted to any change to the cur- rent law. "Our government recognizes the importance of solicitor- client privilege and welcomes ongoing dialogue with the CBA and other stakeholders about the issues that are important to them," said Scott Bardsley, a spokesman for Goodale, in a re- cent e-mail. But the issue remains. Todgham Cherniak says she hears concerns from other law- yers about the issue, including corporate lawyers and in-house counsel. She says lawyers might face particular challenges if they are giving advice about compliance issues that cross multiple juris- dictions where a multinational company is operating, and cus- toms officers want access to their e-mails. "Everybody travels with their laptop, everybody travels with their BlackBerries and their iPhones. We don't keep that in- formation locked in our office, and there are risks," she says. She therefore recommends having separate laptops for dif- ferent purposes. "When I travel, I've got a travel laptop and I've got a work laptop. The work laptop stays at my work and does not cross the border. I have a clean laptop and its only purpose is to go with me on my business travel. It does not have access into my e-mail," she says. Todgham Cherniak says she'd like to see a policy in place where if a laptop is to be searched and a lawyer claims solicitor-client privilege, the matter goes before a judge. She proposes the CBSA would then have to present what it was seeking evidence of, and the lawyer would have a chance to argue whether the content the CBSA was seeking was subject to solicitor-client privilege. Kevin Coon, managing part- ner at Baker & McKenzie LLP and international human rights lawyer, says the biggest concern from a security standpoint is be- yond Canadian borders. "[I]f you're travelling to Chi- na, or many other countries, we have recommended practices and policies about travelling with your computer, travelling with your BlackBerry, or oth- erwise, in terms of what you should do," he says. Coon says security risks may exist in other ways than the cus- toms process, such as the hack- ing of devices. For instance, Coon says law- yers at his firm are told to take the batteries out of their Black- Berries or phones when in an- other jurisdiction. LT Kevin Coon says the biggest concern for lawyers from a security standpoint is beyond Canadian borders. L et's face it, there are some real tough cases out there. Difficult cases can offer a very large upside, assuming you win on a vigorously contested issue, whether it be liability or damages, or both. Plaintiff personal injury lawyers often tackle challenging cases, take risks, and work hard to get excellent results for their clients. In some cases, however, you might want to consider shar- ing the workload and risk with an experienced law firm to maximize your client's chances for a great result. 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