LexSage

Is the CBSA Required to Respect

Solicitor-Client Privilege at the Canadian

Border?

Written by: Cyndee Todgham Cherniak

The Canada Border Services Agency (“CBSA”) has 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.

As a general rule, the CBSA may examine the baggage of any incoming passenger, including lawyers. Section 98 of the Customs Act (Canada) grants CBSA officers broad authority to conduct searches.  Section 99 of the Customs Act (Canada) grants CBSA officers the authority to search "any goods that [have] been imported..."  The term "goods" is defined in subsection 2(1) of the Customs Act (Canada) to include "any document in any form".  This means that the CBSA may examine paper documents and electronic documents and other forms of documents.

Can lawyers claim solicitor-client privilege so that the BSA officer does not read certain documents? 

The answer is "yes".  Operational Bulletin PRG-2014-07 instructs CBSA officers 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.

However, the CBSA limits the application of Operational Bulletin PRG-2014-07 to documents clearly marked as “Solicitor-Client Privilege” or documents that 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 with a red (or other colour) stamp “Solicitor-Client Privilege” so that there is no confusion about whether the document is subject to solicitor-client privilege. The take away is 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.

Operational Bulletin PRG-2014-07 also applies when a traveler (lawyer or client) claims that documents are covered by solicitor-client privilege.  So, it is important to speak up early during the examination process and claim privilege.  Ask the Secondary CBSA officer to bring a supervisor to participate in this discussion.

Operational Bulletin PRG-2014-07 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 solicitor-client 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 Operational Bulletin PRG-2014-07 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 Operational Bulletin PRG-2014-07 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 Operational Bulletin PRG-2014-07 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.  However, this is about to change.  Subsections 99(2) and 99(3) of the Customs Act will be repealed if Bill C-37 “An Act to amend the Controlled Drugs and Substances Act and to make related amendments to other Acts” is passed (see Section 52 of Bill C-37).  Bill C-37 has received Second Reading in the House of Commons in Canada and is being reviewed by the Standing Committee on Health.  See The Canada Border Services Is Getting Authority To Open All Cross-Border Mail

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.

Further, while not a guideline of the CBSA, a lawyer may adapt the Law Society of Upper Canada “Guidelines on Law Office Searches".  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.

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“.