Federation concerned solicitor-client privilege is being challenged by federal government initiatives

The Federation of Law Societies of Canada has raised concerns about the impact several federal government initiatives may have on solicitor-client privilege, and about vague directives for border services agents searching electronic devices used by legal counsel.

In a letter to the Honourable Ralph Goodale, Minister of Public Safety, the Federation expresses concerns about the government’s interpretation of “goods” under the Customs Act, and the Canada Border Services Agency (“CBSA”) policy guiding its officers’ examination of electronic devices.

“CBSA officers are permitted, under the policy, to request passwords to electronic devices if there is a multiplicity of indicators that Customs Act contraventions may be found on the digital device or media” the Federation’s letter explains. “There is no mention of how CBSA officers should conduct themselves in the event a claim of solicitor-client privilege is asserted over the device or media; instead, the policy requires CBSA officers to explain their reasoning in the event of proceeding with a search.”

“As you can appreciate, this gap in policy presents significant uncertainty for legal counsel travelling back to Canada with electronic devices.”

The Federation’s position is that the CBSA policy should be revised to set out constitutionally compliant steps for CBSA agents to take when a claim of solicitor-client privilege is asserted over an electronic device, or its media. “As unequivocally stated on a number of occasions by the Supreme Court of Canada, solicitor-client privilege must be as close to absolute as possible to ensure that clients communicate openly and confidently with their legal counsel” the Federation continues.

“Given that existing CBSA policy is silent on claims of solicitor-client privilege, it leaves CBSA officers with ambiguous instructions on how to proceed, and creates tremendous risk for clients whose lawyers or notaries travel with these materials in electronic form on their portable electronic devices.”

The Federation has raised similar concerns about the preservation of solicitor-client privilege under Bill C-59, “An Act Respecting National Security Measures”. In another letter to the Minister of Public Safety, the Federation says that the powers contemplated for two new oversight bodies also compromise solicitor-client privilege. The National Security and Intelligence Review Agency (NSIRA) is being created to monitor the anti-terror activities of various government bodies, while the legislation also creates the position of Intelligence Commissioner to strengthen oversight of the Communications Security Establishment (CSE) and the Canadian Security Intelligence Service (CSIS).

“The Intelligence Commissioner is specifically granted access to information that is subject to solicitor-client privilege or the professional secrecy of advocates and notaries or to litigation privilege.”  The Federation correspondence notes that proposed provisions stating that disclosure to either of these bodies does not constitute a waiver of those privileges fails to recognize that in the eyes of the client compelled disclosure of privileged information compromises the privilege.

In a letter to the Honourable Navdeep Singh Bains, Minister of Innovation, Science, and Economic Development, the Federation again raises concerns about solicitor-client privilege, this time in response to comments made by the former Privacy Commissioner of Canada, Jennifer Stoddart, during committee hearings into changes to the Personal Information Protection and Electronic Documents Act. Ms. Stoddart argued her belief that “privilege no longer has any reason to exist with regard to complaints or allegations of inappropriate use of personal information.”

“There remains a marked difference between the investigatory powers of the Privacy Commissioner, and the inherent powers of the courts to adjudicate disputed claims over legal rights” the Federation notes in its letter to the Minister. “The Supreme Court has made it clear that the courts are generally best placed to deal with solicitor-client privilege claims. Solicitor-client privilege is a fundamental right essential to the rule of law and in the context of any proposed reform to PIPEDA, the Federation urges you to leave the review and determination of privileged records within the careful hands of our courts.”