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No Routine Searches of Electronic Devices at the Border

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Canadians and travellers into Canada may be pleased to learn that Canadian border officials do not have unlimited powers to search the contents of their electronic devices when entering the country.

The Alberta Court of Appeal (ABCA) reached this conclusion last year in the case of R v Canfield (2020 ABCA 383), finding that the relevant search powers in the Customs Act were unconstitutional to the extent that they allowed for unlimited searches of personal electronic devices.  Recently, the Supreme Court of Canada (SCC) dismissed the application for leave to appeal Canfield, meaning that the ABCA’s decision stands.

Background

Section 8 of the Canadian Charter of Rights and Freedoms provides everyone with “the right to be secure against unreasonable search and seizure”.  In the context of border searches, however, different considerations apply to the s. 8 analysis, as the degree of privacy that can be reasonably expected is lower than in most other situations (see R v Simmons, [1988] 2 SCR 495).

In Simmons, the SCC identified three categories of border searches, from least to most intrusive: (1) routine questioning at the port of entry, accompanied in some cases by a baggage search and/or a frisk of outer clothing; (2) a strip or skin search conducted in a private room; and (3) a body cavity search.

The first category applies to “goods” searched under paragraph 99(1)(a) of the Customs Act, and was found not to engage constitutional issues.  Paragraph 99(1)(a) provides as follows:

99(1)   An officer may

(a)   at any time up to the time of release, examine any goods that have been imported and open or cause to be opened any package or container of imported goods and take samples of imported goods in reasonable amounts.

Subsection 2(1) of the Customs Act defines “goods” to include “conveyances [vehicles], animals and any document in any form”.

Searches of Electronic Devices

In Canfield, the trial judge found that searches of the contents of electronic devices fell within the first category of “routine searches” and therefore did not engage section 8 of the Charter.

On appeal, the ABCA – recognizing the significant developments in technology and in the public use of electronic devices since Simmons was decided in 1988 – took the unusual step of revisiting the SCC’s approach in Simmons.  The ABCA acknowledged that electronic devices often contain highly personal information and that a person’s privacy interest in these devices can still attract constitutional protection even in the context of a border crossing.  The contents of electronic devices cannot be searched as a matter of routine – something more (e.g., a “reasonable suspicion” threshold, or some other threshold) is required.

As a result, the Court declared the definition of “goods” in section 2 of the Customs Act to be invalid insofar as it includes the contents of personal electronic devices for the purposes of paragraph 99(1)(a).  This declaration of invalidity was suspended for a year to allow Parliament the opportunity to amend the legislation and to define the appropriate threshold for a search.

While this is a positive development for travellers, there will remain considerable ambiguity around searches of electronic devices at the border until such legislative amendments are made.

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Guest Tuesday, 19 October 2021

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