Canada-U.S. Blog Trade Lawyers Cyndee Todgham Cherniak and Susan K. Ross

The CBSA Should Respect Solicitor-Client Privilege At The Canadian Border

Posted in Canada's Federal Government, Corporate Counsel, Cross-border trade, Customs Law

The Canada Border Services Agency (“CBSA”) does have an internal policy with respect to examinations and searches of lawyers who are crossing the border into Canada.  This internal policy (Operational Bulletin PRG-2014-07 “Examination of Solicitor-Client Privileged Materials”) is not publicly available on the CBSA web-site, so we posted it.  It is available through Access to Information.

In the Operational Bulletin, CBSA officers are instructed to treat documents, electronic or otherwise, which are protected by solicitor-client privilege, with sensitivity.  This includes printed documents in a lawyer’s briefcase (or a client’s briefcase), printed documents sent by mail or courier, electronic documents on a computer, smart phone or other electronic device.

The CBSA limits the policy to documents clearly marked as “Solicitor-Client Privilege” or are addressed to/from a law firm or lawyer’s office, or are in the possession of a lawyer.  What this means is that lawyers should take greater care to mark sensitive documents so that there is no confusion about whether the document is subject to solicitor-client privilege. It also means that the CBSA officers will not know to treat many documents in a sensitive manner as many documents are not stamped “Solicitor-Client Privilege” and they do not know the names of every law firm or lawyer in Canada and outside Canada.

The policy does apply when a traveler claims that documents are covered by solicitor-client privilege.  So, it is important to speak up early during the examination process and claim privilege.

The policy states that CBSA officers “will not normally open these materials”.  However, if the CBSA officer has reason to believe that a computer or electronic device contains prohibited materials (e.g. child pornography, offensive materials, hate speech, etc.), the CBSA officer may conduct an examinations notwithstanding the claim of privilege.  Computers, briefcases, letters, package, etc. may be examined when the CBSA officer believes that the computer, briefcase, letter, package, etc. also include documents that are not subject to privilege. The CBSA officer is authorized by the Operational Bulletin to open the computer, briefcase, letter, package, etc. to determine admissibility, tariff treatment or presence of contraband, unreported goods and falsely reported goods. Documents that are not subject to solicitor-client privilege may be seized.

It is important to note that where solicitor-client privilege is claimed and the CBSA officer has reason to believe that the documents/electronic device contains contraband or evidence of wrongdoing, the CBSA officer is instructed by the policy to seal the documents of electronic device in an evidence bag without examining the documents or electronic device.  What the Operational Bulletin fails to state is the process that will be followed after the documents and/or electronic device is placed in the evidence bag.  All that the Operational Bulletin states is that the evidence bag will be put aside to be reviewed by a court tasked with reviewing solicitor-client privilege claims.

Currently, the CBSA cannot open packages/letters that weigh less than 30 grams and may open mailed and couriered packages that exceed 30 grams.  A different CBSA policy (CBSA Enforcement Manual, Part 4, Chapter 12, sets out that the CBSA should not normally open mail and couriered documents (that is, packages that clearly contain only documents) from a law firm or lawyer or that are being sent to a law firm or lawyer.  What this means is that such mailed or couriered packages should be clearly stamped “SUBJECT TO SOLICITOR-CLIENT PRIVILEGE”.  If the package arrives opened (which has happened in my personal experience), action can be taken against the CBSA.  It is important to know that the CBSA may scan any document sent by mail or courier (if the package weighs more than 30 grams).

The CBSA takes the position that invoices, passports, packages that contain commercial or casual goods, etc. are not subject to solicitor-client privilege.  As a result, lawyers must be careful in what they send to clients when the goods/documents physically cross the Canadian border.  A different CBSA policy states that the CBSA officer must consider the following:

“In order for the privilege to apply, the following conditions must be met:

  1. there must be a communication between a client (or their agent) and a legal advisor;
  2. the communication entails the seeking or giving of legal advice; and
  3. the communication is intended by the parties to be confidential.”

The CBSA Enforcement Manual notes that there are exceptions to solicitor-client privilege, such as when the client seeks guidance from a lawyer in order to facilitate a commission of a fraud or crime.

The CBSA Enforcement Manual recommends that the CBSA officer contact Legal Services (or another appropriate section of the CBSA) where privilege is claimed or potentially applicable. CBSA officers are instructed to:

  • ensure another officer is available to witness and to sign the appropriate form IMM 5242B;
  • ensure the client understands and observes the process;
  • have the client sign the appropriate form;
  • ensure that notification is given to the lawful owner of the documents;
  • limit the contamination factor by sealing the item and not allowing others to view or handle the seized items; and
  • report procedures on file and/or update FOSS.

If a traveler waives privilege, the CBSA officer should get the waiver in writing.  Our recommendation to lawyers is that they should not waive privilege in order to expedite the examination process unless they have permission from their client.

For more information about the CBSA’s examination powers and solicitor-client privilege, please contact Cyndee Todgham Cherniak at 416-307-4168 or at cyndee@lexsage.com.  Other useful documents are posted on the LexSage web-site.  The best place to look on the LexSage website is under Customs articles and University of Windsor course materials “NEXUS/Border Infractions“.