Law Times

Law Times • June 5, 2017 Page 11 www.lawtimesnews.com Investigation expected to clarify border search rights BY MICHAEL MCKIERNAN For Law Times T he recent launch of an investigation by the Office of the Privacy Commissioner of Can- ada into the Canadian Border Services Agency's practices will help clarify how far mobile de- vice inspections can go at the border, says an Ontario lawyer. Shaun Brown, a partner at Ottawa firm nNovation LLP, says he hopes the investigation will provide guidance to Cana- dians, including lawyers, about what their rights are during searches. "It's a great example of the role the privacy commissioner should be playing, because there is a real lack of clarity around these issues," he says. In addition to the OPC's in- vestigation, lawyers who prac- tise in the area expect the matter to end up before a judge in the near future. A court almost had the chance to rule when Alain Philippon, a Quebec man f lying home from the Dominican Re- public, was detained at a Halifax airport for refusing to unlock his smartphone for CBSA offi- cers. However, Philippon agreed to plead guilty to a Customs Act charge of hindering or obstruct- ing a border official on the eve of his trial last summer. Should any border guard ask David Fraser to hand over his cellphone or laptop, the privacy lawyer has his spiel all ready to go. Regardless of the country in which he's pulled over, the Hali- fax-based privacy lawyer, a part- ner with McInnes Cooper LLP, says he will explain to the au- thorities that he simply can't un- lock his devices or provide any passwords because of the possi- bility that they contain solicitor- client privileged information. Without placing a call (on another phone) to the Nova Sco- tia Barristers' Society for advice, he says he won't be able to offer any help to officers in their in- vestigations. "Solicitor-client privilege has been held sacrosanct, with only a couple of exceptions. Those are extremely narrow, and none of them are impacted at the bor- der," Fraser says. In any case, "it's not the lawyer's privilege to waive; it's the client's. In my view, that trumps virtually any other right of access to that sort of in- formation," he adds. Luckily for him, Fraser has never had to break out the speech, so he's yet to learn first- hand whether or not the Canada Border Services Agency or U.S. Customs and Border Protec- tion share his assessment of their search rights. He has not been asked to undergo second- ary screening in recent memory, Fraser says, and is not on any watch list that he knows of. "It would have been interest- ing to see how the court would deal with the charge in an age where people have such high expectations of privacy in their computer systems," Fraser says. "How does that play in with the reduced expectations you have at the border, when normal ci- vilians are walking around with a huge amount of information on their devices?" For lawyers who would rather minimize the chance of a con- frontation, Fraser says there are some precautions they can take. "One of the clichés of privacy law is the less information you have, the better. The more infor- mation you have, the greater the risk of something going wrong and the greater the risk when something does go wrong," he says. "You should always be mindful of how much informa- tion you are carrying around." Earlier this year, Fraser got the chance to put his own advice into practice when making his first cross-border trip since the U.S. election last November. "The Trump era has focused attention on this issue, but these are some specific actions that everyone should probably be taking in an age where mobile device searches are becoming more common," he says. Fraser left behind his regular work laptop in favour of a per- sonal one loaded with the basics and set up for remote access. He also performed a factory reset on his cellphone in Montreal be- fore pre-clearance for a f light to Washington, D.C. Once on U.S. soil, he took the opportunity to reload all his phone's regular apps and ac- counts, before repeating the pro- cess on the way home. "It's a time-consuming and Wi-Fi-consuming process," says Fraser, who admits that his in- teraction with border staff made him question the value of going through the whole rigmarole. "I just had to answer three questions, and then it was 'bon voyage,'" he says. CBSA spokesman Barre Campbell said in an emailed statement to Law Times that its staff must treat any privileged documents "with sensitivity." "CBSA officers are exposed to the importance of solicitor- client privilege at several points during their training. This is also outlined in the guidelines in the CBSA enforcement manual," Campbell added. According to Campbell, the Customs Act gives border of- ficers the right to examine any "good" imported into Canada, including electronic media and their contents, "to ensure com- pliance with our laws." "Current CBSA policy is that examinations of electronic goods should not be a matter of routine; instead, multiple indicators must suggest evidence of contraven- tions may be found on a device," Campbell said in his statement, adding that the agency "is com- mitted to maintaining the bal- ance between an individual's right to privacy and the safety and security of Canadians." When it comes to passwords, he said, agents can only request them for access to files or in- formation stored on the device itself. "Passwords are not sought to gain access to any type of ac- count, files or information that might be stored remotely or on- line," Campbell said. Despite those assurances, Law Society of British Columbia president Herman Van Ommen remains concerned by the situ- ation. In a letter to the federal ministers of justice and public safety, he claimed demands for passwords to devices that could be expected to contain privi- leged information would violate Canada's Customs Act. FOCUS Shaun Brown says an investigation launched by the Privacy Commissioner of Canada will help people understand what their rights are during border searches. See Searches, page 12 © 2017 Thomson Reuters Canada Limited 00244SZ-A87345-CE Start stronger. Finish faster. SECONDARY SOURCES ON WESTLAWNEXT® CANADA Confidently take on complicated matters and leverage the topical expertise from world-class authors, including practitioners, law professors, and judges, who know and shape the law to quickly get the answers you need. Explore what's new to Secondary Sources on WestlawNext Canada. westlawnextcanada.com/secondary-sources www.twitter.com/lawtimes Follow on

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