Page 23 - CCCA 239285 Magazine_Fall 2015

{ Feature }

Until a joint CBA/CBSA policy is developed, you should at- “ At the present time,
tempt to follow the Lavallee criteria—but understand that
the CBSA offcer and supervisor most likely have never read
the Supreme Court of Canada decision in Lavallee, Rackel & the CBsA And the
Heinz v. Canada (Attorney General) 2002 SCC 61.
The Law Society of Upper Canada has also issued “Guide- depArtment oF JustiCe
lines for Law Offce Searches,” which you can fnd here:
www.lsuc.on.ca/guidelines-for-law-offce-searches. The Guide-
lines would have to be adapted because the CBSA does not is- do not hAVe AnY poliCY
sue search warrants and will not have judicial approval of the
examination before inspecting suitcases, briefcases, purses, wal-
lets and electronic devices. (As a technical matter, the activity is in plACe to Address the
referred to as an “examination” in section 99 of the Customs Act
exAminAtion oF A lAwYer
and is not considered a “search.”)

Be prepAred where doCuments in the
In-house legal departments should test a few laptops and smart-
tronic documents that the company would not want the CBSA lAwYer’s possession Are
phones. The frst question to ask is whether there are any elec-
to copy. The second is whether there is a mechanism to disable
access to documents on the server (which are technically not CoVered BY soliCitor-
in a person’s possession at the time they cross the border). The
third is how the person travelling might respond to questioning
by a CBSA offcer. Based on the answers, provide appropriate Client priVilege.”
training to any in-house counsel travelling outside of Canada
so that the lawyer is not arrested and the incident at the border
does not become headline news.
Canada does not have a defned process for lawyers to follow
at the border. This means the potential for a dispute is higher.
In-house counsel manage risks for their organizations every
day—this should include their own risk at the border. ❚

Cyndee Todgham Cherniak is the founder of LexSage Professional Corpo-
ration, a boutique international trade and sales tax law frm. She can be
reached at cyndee@lexsage.com.

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