Tax & Trade Blog
Searches of Digital Devices at the Border
Border searches can be nerve-wracking experiences, particularly if it involves an officer looking through your phone or laptop. Canadians and international visitors may therefore be surprised to know that thanks to a 2020 Alberta Court of Appeal (“ABCA”) decision, the CBSA does not currently have the right to search personal digital devices (“PDDs”) at ports of entry – at least in Alberta!
While this quirk looks like it will be temporary as the government has introduced Bill S-7 to address this issue, travellers should be aware of the amendments to the Customs Act (the “Act”) which are currently proposed, and might impact the state of the law going forward.
In May 2018, two travellers (the “Offenders”) were convicted of possession of child pornography, based on evidence obtained by the CBSA during searches of their PDDs while going through customs in Alberta. The Offenders appealed the trial decision to the ABCA.
Gaps: ABCA Finds PDD Searches under Customs Act Unconstitutional
The ABCA determined that although the definition of “goods” under section 2 of the Act is broad enough to include PDDs, there is no threshold for the CBSA to meet before it searches goods under paragraph 99(1)(a) of the Act.
The lack of a threshold meant the CBSA had no statutory restrictions (i.e., other than self-imposed policies and guidelines) on when it could conduct a search of a PDD. In the ABCA’s unanimous view, this meant that the Act violated the Offenders’ constitutional rights under section 8 of the Charter, though only when it comes to PDDs (however, the convictions were upheld because the ABCA did not exclude the evidence under section 24(2) of the Charter). The Supreme Court of Canada refused to hear the case, which left the ABCA declaration as the final word.
Lapse: The Feds Run Out the Clock on Amending the Customs Act
The ABCA suspended its declaration of invalidity for one year in order to allow Parliament time to introduce new legislation. The Federal Government requested two extensions: the first, to April 28, 2022, was granted unanimously, but the second was refused in a 2-1 decision, despite Bill S-7 being introduced on March 31, 2022 (i.e., one month before the first extension was set to expire).
The Quiet Fix: Bill S-7 is Working its Way Through the Senate
Bill S-7 appears to be an attempt to fill the gap exposed by the ABCA with minimal impact to the CBSA. To that end, Bill S-7 includes language which allows an officer to:
“examine documents, including emails, text messages, receipts, photographs or videos, that are stored on a personal digital device … and is in the custody or possession of a person if the officer has a reasonable general concern …”
“Reasonable general concern” is an entirely new threshold in Canadian law and its precise limits have yet to be tested. However, the phrase seems intended to grant significant deference to the CBSA in determining if and when PDDs should be searched. It is therefore noteworthy that a Senate committee recently voted to do away with this novel standard and replace it with the existing “reasonable grounds to suspect” (which while still a low threshold, would likely be higher than “reasonable general concern”).
It is somewhat unusual that the Federal Government has decided to introduce its legislation in the Senate, rather than the House of Commons, and that may be an intentional attempt to minimize Bill S-7’s public profile. However, given the news coverage of the Senate committee’s proposed amendment, it is clear the public is watching this legislation.
If and when Bill S-7 is passed, travellers to Canada should be aware that privacy “rights” are (and likely will continue to be) extremely limited when it comes to crossing the border. This basically means that the world of information contained on a PDD could be available to a CBSA officer who has “reasonable grounds to suspect” – unless travellers take precautions in advance. Current CBSA guidelines limit searches to information stored locally on a device, which means that travellers should be proactive not only with what they bring in their luggage but with their PDDs as well!
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