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New security screening at federal courts

Cover Story
The federal government has tightened security at federal courts in an effort to improve safety.

New security screening at federal courts
Peter Aprile says that while there is a concern that the new process could leave files with sensitive information open to scrutiny, he is confident that lawyers can work with court staff to appropriately balance privilege with security concerns. Photo: Robin Kuniski
Lawyers at federal courts in Toronto and Ottawa now will be required to go through metal detectors when entering, and they will have their belongings screened.

The new screening process is being implemented in the Federal Court, Federal Court of Appeal, Tax Court of Canada and the Court Martial Appeal Court of Canada.

While some lawyers do not view the new screening as particularly onerous, another has voiced concerns that lawyers are being subjected to searches.

Peter Aprile, of Counter Tax Lawyers, says that while there is a concern that the new process could leave files with sensitive information open to scrutiny, he is confident that lawyers can work with court staff to appropriately balance privilege with security concerns.

“What the release seems to say and what the court seems to support is that we can make arrangements with the courts’ officers in advance if there are any issues,” he says.

“My position was if I had some grave concern about that, then, obviously, we would avail ourselves to speaking with the court registry office . . . and make sure any sensitive information was protected.”

The new security measures were announced at the end of March along with a list of prohibited items.

The new screening measures are similar to the process when going through security at an airport, lawyers say.

However, it is unlike Ontario’s provincial courts, where lawyers are exempt from security screening.

Lawyers, and others who enter the courts, will have their belongings screened using an X-ray machine and possibly physically searched if necessary “to resolve an alarm” or if there is no machine available.

They will also have to walk through a metal detector.

Security guards may use an additional hand-held metal detector if it’s deemed necessary and can also conduct a physical search.

Privacy lawyer Gil Zvulony says he does not think lawyers should be subjected to security screening as it will be an undue inconvenience.

“[It’s] much like airport employees, [who] don’t have to go through rigorous screening when they go to work. Similarly, the judges aren’t going to go through screening. So, I don’t think lawyers should,” he says.

He questioned whether court resources should be used to screen lawyers who are officers of the court and have met professional requirements.

“Screening is to weed out the people we don’t know, bringing in bad things,” he says.

Yves Leclair, a spokesman for Courts Administration Service, said that briefcases and document boxes will be screened using equipment that does not reveal the content of documents.

“Security officers will not be reviewing solicitor-client privilege documents. If the X-ray screening equipment identifies item(s) that could be potentiality prohibited, the lawyer will be asked to help resolve the matter by showing only the item(s) in question to the screening officer,” said Leclair in an e-mail statement.

“This may include asking the lawyer to move aside anything in the belonging that is obstructing the officer’s view of the questionable item(s).”

He added that the screening procedures were developed to be the least intrusive possible.

Leclair said further inspection will only be conducted “if there is no other way to confirm there are no prohibited items present” and with the lawyer’s prior consent.

He added it was decided that lawyers would not be exempt from the screenings after examining the practices of other jurisdictions.

“As a national security program whose main objective is to minimize risks to the safety and security of members of the courts, lawyers, parties, witnesses, employees and the public, it is particularly important that the Courts Administration Service ensures consistency and uniformity in the security measures applied throughout Canada,” he said.

CAS is encouraging lawyers who intend to submit items to the court as potential exhibits that are not documents to consult the registry ahead of time to see if special arrangements are available to avoid delays.

Aprile says his firm’s general practice is to clearly mark all files that are subject to solicitor-client privilege and that it would rarely bring such materials to court.

“Frankly, security isn’t terribly interested in our submissions,” he says.

The courts have told lawyers to let their clients know about the requirements and encouraged them to arrive at least 30 minutes before their proceeding is set to begin.

In Ontario Superior Court, lawyers simply have to show their identification from the Law Society of Upper Canada and they can avoid having to go through security screening. Lawyers say that when they visit courts in other provinces, they can usually show their LSUC identification and walk through.

The government also plans to invest $19 million over five years in both physical and IT security at federal courthouses, which will include installing new cameras, additional security personnel and screening tools.

The equipment necessary for the screenings is being installed at 11 federal courts across the country and should be operational at all of them within the next few months.

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