Does The Canada Border Services Agency Have The Authority To Search Your Electronic Devices?

At the beginning of this year, I discussed the issue of border searches of electronic devices performed by United States Customs and Border Protection ("USCBP"). Of course, similar issues arise on the Canadian side of the border as well. For this reason, I will now discuss border searches of electronic devices performed by the Canada Border Services Agency ("CBSA").

Background

According to Subsection 99(1) of the Customs Act1, CBSA officers have the authority to search goods being imported into Canada. In particular, Clause 99(1)(a) states that an officer may "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." This type of routine search does not require any reasonable suspicion on the part of the CBSA officer.

In addition, Subsection 139(1) of the Immigration and Refugee Protection Act2 permits CBSA officers to search any person seeking to come into Canada, their luggage and personal effects, and the means of transportation that conveyed the person to Canada if the officer believes on reasonable grounds that the person:

Has not revealed their identity or has hidden on or about their person documents that are relevant to their admissibility; or Has committed, or possesses documents that may be used in the commission of an offence relating to human trafficking or document fraud. In R. v. Simmons3, the Supreme Court of Canada ("SCC") recognized that international travelers have a reduced expectation of privacy when crossing the border. It also indicated that there were three distinct levels of border searches (routine searches, strip searches, and cavity searches), each of which raised different constitutional issues. The more intrusive the search, the more reasonable justification is required.

Although the SCC has not directly addressed the constitutionality of suspicionless smartphone and laptop searches performed at the border, lower courts have found that such searches are permitted.4 The term "goods" is defined in Subsection 2(1) of the Customs Act to include "conveyances, animals and any document in any form." These lower courts have found that computers, cell phones, and other electronic devices fall within the meaning of this term.

The courts have also concluded that routine border searches of smartphones and laptops in the border context do not require reasonable grounds. In R. v. Sekhon5, the British Columbia Court of Appeal found that, as part of the normal course of the screening process, routine...