Page 22 - CCCA 239285 Magazine_Fall 2015

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If a lawyer is selected for a secondary inspection, it is possible site, and make sure passwords are entered each time, not saved.
that the CBSA will examine his or her electronic devices and Also, make sure your IT department scrubs the laptop before
download everything on the hard drive for review. The CBSA you take possession (to make sure the “Fifty Shades of Grey”
takes the position that it has broad powers under section 99 DVD your colleague bought on the black market, or something
of the Customs Act to examine any goods, including electronic worse, is no longer on the computer).
devices and electronic documents on electronic devices. Fur- For your smartphone, it is possible to scrub it clean of all emails
ther, the CBSA takes the position that it is not necessary for the (which can be downloaded again once you are safely home). Also,
offcer to have “grounds” or “reasonable suspicion” in order to as some apps permit the user to download documents on the
examine the goods of the traveler. It believes that an examina- smartphone, it is prudent to review which documents are living
tion of a laptop is no different than that of a suitcase. on your smartphone before heading to the airport.
The CBSA also takes the position that it can copy a hard drive, In addition, clean out your briefcase. International travel is
USB key or electronic device. According to subsection 115(1) of a great time to look for any stray USB keys and ensure (1) they
the Customs Act, “If any record is examined… the offcer… may are not in your briefcase and (2) any information on the USB
make or cause to be made one or more copies of it…” key is properly saved on the company servers or erased if no
At the present time, the CBSA and the Department of Justice longer needed.
do not have any policy in place to address the examination of a Finally, change your passwords once home, as Wi-Fi in hotels
lawyer where documents in the lawyer’s possession are covered and conference spaces may not be secure. A website address,
by solicitor-client privilege (or the lawyer claims they are). user name and password can be intercepted; and electronic
This issue has recently been complicated by a CBSA offcer’s communications can be accessed after you arrive home.
decision to criminally charge Alain Philippon under section
153.1(b) of the Customs Act when he refused to provide his respeCt the CBsA
password so that the CBSA could access his smartphone. While
a decision has not yet been rendered in this case, it illustrates In 2013, the CBA passed Resolution 13-06-A “Solicitor-Client
the risk to lawyers. In-house counsel may be faced with two Privilege at the Border,” creating a working group to develop an
bad choices: (1) provide passwords and grant access to client approach to preserve privilege at the border without obstruct-
confdential information in order to cooperate during a CBSA ing the CBSA offcers. To date, the Minister for Public Safety
secondary inspection or (2) refuse to provide passwords and and Emergency Preparedness has not responded to CBA letters
end up in jail. to create such a policy.
In the meantime, consider the following:
reduCe Your risk 1. Be nice to the CBSA offcer.
2. Inform the offcer in a non-confrontational way that you are
Since you must travel with electronic devices to stay connected a lawyer. (Just like some people are afraid of barking dogs,
to the offce and clients, the risk during a secondary inspection some people may be afraid of lawyers.)
by the CBSA can be mitigated by making a concerted effort not 3. Ask politely if the offcer could include his or her supervi-
to travel with any electronic or hard-copy documents, emails or sor in the discussions about solicitor-client privilege. (The
other media that you do not wish to share with the CBSA. supervisor is there to de-escalate problems and may under-
For example, bring a laptop that is only used for travel pur- stand your concerns.)
poses. Save on it only the documents needed for the trip after 4. If the offcer demands your passwords and you must respect-
carefully considering whether the document is too sensitive to fully decline, ask if the offcer can preserve your laptop and
transfer to the laptop. Do not load an email program or portal contact the CBSA lawyers to schedule a motion before a judge
to offce computers. Only access emails through a secure web- who can help balance your interests with those of the CBSA.

22 CCCa MaGazIne | FaLL 2015 auTOMne