At the present time, the Canada Border Services Agency (“CBSA”) does not have a published or informal policy concerning what a lawyer should do to claim solicitor-client privilege during an examination of documents in a lawyer’s briefcase or electronic documents on a lawyer’s computer or PDA.
Based on the Alain Philippon case, currently before the Nova Scotia Provincial Court, a person could be arrested and charged pursuant to section 153.1 of the Customs Act (Canada) for failing to provide passwords or allowing the examination of the documents in his/her briefcase. The CBSA has the right to examine goods and electronic records are considered to be goods. A computer is just like a suitcase (to the CBSA).
Breach solicitor-client privilege or get thrown in jail – two bad choices for a lawyer. A recommendation may be to follow the Lavallee principles. However, any lawyer should understand that the CBSA officer and supervisor most likely have never read the Supreme Court of Canada decision in Lavallee, Rackel & Heinz v. Canada (Attorney General) 2002 SCC 61. If you are going to discuss a Supreme Court of Canada case with the lovely CBSA officer, do so nicely.
In addition, a lawyer may adapt the Law Society of Upper Canada “Guidelines on Law Office Searches“. However, it is very important to note that the CBSA does not issue search warrants and will not have judicial approval of the examination before inspecting suitcases, briefcases, purses, wallets and electronic devices.
While the Law Society Guidelines have not been accepted by the CBSA as an acceptable approach to claiming solicitor-client privilege at the border, the Guidelines do offer guidance and are better than having no plan at all.
If your relationship with the CBSA officer is not going well, politely ask for him/her to include his/her supervisor in the discussions. A supervisor’s job is to support the officer while de-escalating the tension. Ask the supervisor politely how you might go about bringing the documents before a court in order to balance the solicitor-client privileged documents and allowing the CBSA to do their job.
Above all else, the CBSA has a job to do and having a valid Law Society card does not give lawyers a pass on customs examinations.