An issue of great importance to the Canadian Bar Association is solicitor-client privilege. Solicitor-client privilege is fundamental to the proper functioning of the Canadian legal system. As a result, steps must be taken to ensure that solicitor-client privilege is protected at Canadian airports, Canadian ports of entry, and U.S. pre-clearance areas on Canadian soil.
The Supreme Court of Canada has repeatedly emphasized that solicitor-client privilege must remain as close to absolute as possible and should not be interfered with unless absolutely necessary. In the rare case of necessity, there must be explicit statutory language stating that privilege can be interfered with, which must be accompanied by legislative safeguards. Most people, including lawyers and clients, travel with solicitor-client privileged documents on their laptops, on their smart phones, on USB keys, and so on.
It is essential that the CBSA and U.S. customs, when operating in Canada, maintain a transparent policy and process to address solicitor-client privilege. When solicitor-client privilege is claimed, Canadian courts, not the CBSA or U.S. custom officers, should make the determination of the validity of such claims.
The Canadian Bar Association has made a number of recommendations in the submissions they have provided to the committee.
One, the CBA recommends the creation of a working group with representatives from the Canadian Bar Association, Justice Canada, and the CBSA to collaborate in the development of a defined policy for examination at the Canadian border where solicitor-client protected information is involved.
Two, the CBA recommends that the CBSA's policy on solicitor-client privilege be made publicly available on the CBSA website. Remarkably, it is not available at the current time for all to see and to hold the CBSA accountable. The CBA has made a number of recommendations in the submissions concerning the content of the current operational bulletin on solicitor-client privilege. Please review those submissions and our recommendations.
This committee should strongly recommend that the Canadian Ggvernment require U.S. customs to have a transparent and available written policy on solicitor-client privilege that is applicable to all pre-clearance examinations on Canadian soil. The CBA submissions also address oversight of the CBSA in areas such as information sharing by the CBSA with other government departments and other countries. Robust accountability mechanisms are crucial to the legitimacy and efficacy of our national security agencies as well as to public confidence in them.
This committee should recommend that the Government of Canada put effective CBSA oversight and complaints mechanisms in place, and that a transparent mechanism and process for Canadians and Canadian residents be put in place to challenge information collected about them at airports and the border. Any oversight model must incorporate a robust review mechanism. There should be verifiable procedures to ensure that any improperly obtained information is expunged from the CBSA and U.S. customs databases.
I would more than welcome any of your questions.