Canadian Lawyer

August 2019

The most widely read magazine for Canadian lawyers

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Page 19 of 63

FEATURE 20 Lawyers need to take care at borders Rules still not clear on whether privileged information carried on devices is protected from search A TORONTO lawyer has gone to Federal Court for clarity after his devices were seized at the border on his return to Canada. Nick Wright, principal of Wright Business Law in Toronto, says he was coming back to the city in April after working remotely from Guatemala and Columbia. Wright says he had his phone and laptop seized after he refused to provide the passwords for the devices to a customs officer, because both devices contained information covered by solicitor-client privilege. In May, he and another lawyer filed an application in Federal Court. They sought a ruling that the practice of searching any personal information contained in files on electronic devices without probable cause or warrants is in breach of the Canadian Charter of Rights and Freedoms. "It's important because I think we all have a duty as Canadians to stand up for individual rights and civil liberties, and to defend our Constitution, because if we don't then our rights and freedoms that are foundational to Canadian society are quickly eroded," he says. Wright also sought a ruling that searching materials covered by solicitor- client privilege, "contrary to the process determined in previous cases," is a breach of the Charter under s. 7 and 8, as well. "I think it's outrageous that the Canadian government is engaged in this unconstitutional practice," he says. "The fact that they're attempting to rely upon 30-year-old case law prior to cellphones to argue that they should have full access to all information on all devices is equally outrageous. . . ." Wright is not alone in his concerns. In a report from December 2018 from the Federation of Law Societies of Canada, it's noted that Canadian lawyers and Quebec notaries "face increasing uncertainty about how these electronic devices will be treated by border agents on apprehension by Canadian Border Security Agency officers on return to Canada." "Searching the electronic device (including smartphones, laptops and USB sticks) of a legal professional may infringe solicitor-client privilege when that legal professional crosses borders," says the report from December 2018. It also notes that a "review of information available through other sources and correspondence from Minister [of Public Safety and Emergency Preparedness Ralph] Goodale suggests that solicitor-client-privileged information is subject to special rules." "However, the policy does not completely FOCUS ON INTERNATIONAL LAW "[The federal Customs Act] says you can search goods without a warrant, and a cellphone is treated as a good . . ." David Young, lawyer at David Young Law

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