Cyndee Todgham Cherniak, of Lang Michener LLP, writes for the Trade Lawyers Blog that a courier package addressed to her as counsel at her law firm was opened by Canada Border Services Agency. The package was sent by Dr. Henry T. King of the Canada-United States Law Institute. CBSA had marked the package "EXAMINED / RELEASED – CUSTOMS – TORONTO – DOUANES, EXAMINÉ / LIBERÉ". As she points out in her post, this invasion of privacy has ramifications for solicitor-client communications.
Is it simply naïve to believe that cross-border communications are in fact private and that the various national security agencies do not read our letters and our emails on an as-needed basis? And as for packages, when ought objects sent to lawyers be immune from customs scrutiny?
[via Michael Geist]
As someone who frequently ordered materials from the U.S. for a law firm (mostly books, but sometimes documents), I was used to Customs examining packages. In fact, this would frequently cause unnecessary delays which I would warn people waiting for the materials about. Packages were not always opened, but they were usually held. It seemed to me on my bit of anecdotal evidence that law firms were specifically targeted. Aside from GST owing on purchased items, I don't know what they were hoping to find. Does anyone else experience this on a regular basis?
Then, there was the one time a colleague from the U.S. tried to mail me a book and it was returned to him by the U.S. postal service as something they could not send to Canada. We're still not sure why as it was pretty innocuous (it was a tourism piece from his local tourism board).
@ Connie: Would you expect a difference in treatment of mail addressed to a firm generally (or, say, to its library) and mail addressed and marked specifically to counsel?
How would the border agents know the difference, if the package was addressed to a person? Perhaps it would be useful to have some guidance from Customs on how to label/address items which are privileged.
And if they are concerned that the package may contain something other than documents, x-ray would reveal contraband without showing what's on a document, I assume.
@Greg – excellent question. I don't honestly know. Everything I had was addressed either to me (not counsel) or to the Library.
@Wendy – X-ray seems to be a more sensible approach than opening. I also think the way something is packaged and labelled likely makes a difference, so getting some guidance is a good idea. I found there was rarely a problem, for example, when having something sent by Fedex because they had their own customs brokers and seemed to know the process better. Things sent by mail or other courier companies were more likely held and/or opened for inspection. I was always willing to pay additional for Fedex on something time sensitive (I didn't deal in privileged documents).