OTTAWA — It’s time for the Canadian government to come up with a clear policy to address issues of solicitor-client privilege when lawyers are asked to hand over their laptops and smart phones to border guards for inspection, legal experts will argue this week.
It’s among some 15 policy resolutions up for debate at the Canadian Bar Association’s annual conference that runs Thursday through Tuesday in Saskatoon.
Toronto-based customs lawyer Cyndee Todgham Cherniak said Canada is well behind the United States when it comes to recognizing claims of solicitor-client privilege when border officers exercise their right to examine items being imported into the country.
“In the U.S., they dealt with this two or three years ago. You can say, ‘I’m a lawyer. I want your request to go to a judge,’ and they can look through the PDA and restrict it,” she said in an interview.
“So many lawyers travel with their office laptop and their iPhone and BlackBerry and they have all these downloaded messages. (The Canada Border Services Agency) can ask for that and look for it and right now, Canada doesn’t have any process for a lawyer to claim solicitor-client privilege.”
As for the average Canadian who may cross the border with similar legal correspondence on their computers and mobile devices, Cherniak said that could be part of the discussion as well.
For now, she said lawyers will look at asking the government to consider the issue with the goal of establishing a policy to deal with claims of privilege that involves judicial oversight and provisions for destroying seized documents should they be deemed irrelevant to the investigation.
Meanwhile, another resolution to be debated would call on the government to step up efforts to address gender and ethnic diversity in Federal Court appointments.
As of April of this year, just 31 per cent of all federally appointed judges were women, said B.C. lawyer Linda Robertson, adding her province hadn’t seen female appointee for two years. After some poking and prodding by the local bar association, that changed in June when four women were finally appointed, she said, adding the ethnic make-up of the court is less clear.
“The judges who sit on these cases bring with them their own life experiences and different perspectives that different groups have. Women bring a different perspective than men to the bench. Someone who’s Indo-Canadian has a different life experience,” she said.
“We need to make sure that all the diverse experiences experienced by Canadians are reflected in our courts to eliminate any unconscious bias or perceptions of bias.”
But Robertson said the resolution goes beyond simply addressing the make-up of the court. It also calls on the government to consider the gender and ethnicity of judicial advisory committee members who vet applications for judicial appointments and provide the government with short lists of qualified candidates.
According to the resolution, just a quarter of the judicial advisory committee members are women and as of April 2013, there were no females in B.C., western and southern Ontario, and Saskatchewan.
The resolution also calls on the government to publish annual statistics on the number of women and men who apply for a judicial appointment in each jurisdiction, as well as the number of candidates who self identify as belonging to a particular ethnic group. Robertson said B.C. is a leader in this area having already done that for gender. The province, she said, will start tracking ethnicity soon.
Other proposals would call on the federal government to support safe injection sites and other harm reduction drug policies, to amend legislation in order to better accommodate individuals with Fetal Alcohol Spectrum Disorder and to amend a ministerial directive on information sharing by the Canadian Security Intelligence Service to “remove discretion to use information that may have been derived from torture” and to “prohibit” the sharing of information if it would put somebody at risk of torture.
Meanwhile, lawyers in Quebec and Alberta are calling on the federal government to immediately fill a number of Superior Court vacancies, while B.C. and Manitoba lawyers want the federal government to address taxation anomalies they say have resulted in legal fees being doubly or triply taxed.
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