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Thursday, February 7th, 2019 technology  research  practice

A Practice Tip

  • Practice

With travellers at Canadian airports and border crossings subject to increasing scrutiny,[1] it is important for lawyers and Quebec notaries to have an understanding of how the privacy interests of their clients may be impacted by legislation and policies developed to address public safety issues.  Legal counsel should also understand that their profession does not make them immune to policies and processes that could impact information otherwise subject to solicitor-client privilege.

Canadian lawyers and Quebec notaries travelling internationally with electronic devices face increasing uncertainty about how those electronic devices will be treated by border agents on apprehension by Canadian Border Security Agency (“CBSA”) officers on return to Canada, by border agents in the U.S., or by border agents in other international destinations.  Searching the electronic device (including smart phones, laptops, and USB sticks) of a legal professional may infringe solicitor-client privilege when that legal professional crosses borders.

A new advisory, Crossing the Border with Electronic Devices: What Canadian Legal Professionals Should Know, developed by the Policy Counterpart Group of the Federation of Law Societies of Canada (the “Federation”) with the assistance of law society practice advice counsel, describes the risks of travelling with an electronic device when returning to Canada, going through pre-clearance with U.S. border officials on Canadian soil, and when travelling to the U.S. and beyond.  This advisory also identifies relevant professional responsibilities, and concludes with suggestions and advice for Canadian lawyers and Quebec notaries on minimizing those risks.

[1] Office of the Privacy Commissioner, “Your privacy at airports and borders,” (October  2018), online: https://www.priv.gc.ca/en/privacy-topics/public-safety-and-law-enforcement/your-privacy-at-airports-and-borders/

[This tip originally appeared on on the Law Society of Saskatchewan Library’s Legal Sourcery Blog]

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