The Canada Border Services Agency (“CBSA”) has published a written statement on its website that when the CBSA conducts an examination of electronic devices (e.g., laptops, smart phones, USB keys, etc.) at the Canadian border, CBSA officers must not search electronic documents marked as “solicitor-client”.  The CBSA has published a webpage entitled “Examining digital devices at the Canadian border” in which it clearly states the following:

“Solicitor-client privileged information

The CBSA is committed to respecting privacy rights while protecting the safety and security of the Canadian border. If a BSO encounters content marked as solicitor-client privilege, the officer must cease inspecting that document. If there are concerns about the legitimacy of solicitor-client privilege, the device can be set aside for a court to make a determination of the contents.”

What this means is that lawyers now are able to refer to a public document when informing a CBSA Officer that they should limit their examination of electronic devices.  It also means that content must be marked as “solicitor-client privilege”.  We recommend that should lawyers travel with an electronic device such as a laptop, that they travel with a clean laptop used only for cross-border travel. On that laptop, there should be a folder clearly named or marked “Solicitor-client privileged documents”.  Only bring what is necessary for the travel.  Put all client related documents in that folder and do not put personal documents in the folder.

When traveling with paper documents, have a folder labelled “solicitor-client privilege”.  It is not very costly to obtain a stamp for file folders and envelopes.

For more information, please contact Cyndee Todgham Cherniak at 416-307-4168 or at cyndee@lexsage.com.