Marking The Boundaries Of Permissive Searches At The Border ' Routine Searches Of Personal Devices No Longer Permitted Under The Customs Act

• Published date: 12 January 2021
• Subject Matter: Government, Public Sector, Privacy, Privacy Protection, Constitutional & Administrative Law
• Law Firm: McCarthy Tétrault LLP
• Author: Termes De L'échange, John W. Boscariol, Andrew Matheson, Shana Wolch, Stéphane Duval and Brian Lipson

Is the Canada Border Service Agency ("CBSA") entitled to "examine any goods," including personal devices such as smart phones, of travellers at the Canadian border without reasonable and probable grounds? The Alberta Court of Appeal ("ABCA") recently answered no to this question in a decision that impacts Canadian customs, privacy, criminal, immigration and constitutional laws. The decision also provides further guidance on an individual's other interests at the border, including the determination of when they are considered to be detained.

For decades, and until the ABCA decision of Canfield,¹ the Customs Act ("Act")² gave broad search powers to the CBSA to "examine any goods" - including personal electronic devices - at the border without reasonable and probable grounds. Indeed, the Supreme Court has held on multiple occasions that travellers have a lower expectation of privacy at the border, including in the 1998 seminal border decision of R v. Simmons.³ The issue in Canfield was whether the Act was in line with modern understandings of privacy, in particular as it applied to searches of electronic devices.⁴

The ABCA unanimously held that groundless searches of personal electronic devices conducted pursuant to paragraph 99(1)(a) of the Act infringed on the "right to be free from unreasonable search and seizure" enshrined in section 8 of the Canadian Charter of Rights and Freedoms ("Charter"), and that such infringement "could not be deemed reasonable and justified in a free and democratic society" under section 1 of the Charter. Accordingly, paragraph 99(1)(a) of the Act was deemed unconstitutional, with an important caveat-only routine searches of personal electronic devices at the border were deemed unconstitutional. The ABCA did not go further, however, to determine the standard that would be sufficient to support such a search, such as reasonable and probable grounds or something else. Instead, the ABCA suspended its declaration for a period of one year to allow Parliament to appropriately respond,⁵ which means that these routine searches of personal electronic devices can continue for the next year. It remains to be seen how Parliament will respond to the ABCA's decision. and also whether the Supreme Court of Canada ("SCC") will grant leave to hear this case.⁶ The ABCA's decision is a ground-breaking recognition that "the reasonable expectations of privacy international travellers hold in their electronic devices must be considered anew and in context."⁷ However, until the leave application and a possible appeal to the SCC is addressed, those entering Canada, including business travellers with smartphones, tablets and laptops containing both personal and commercially sensitive information, should understand that the CBSA continues to have very broad powers enabling them to conduct routine searches of electronic devices.

The application for leave to appeal by the accused raises a number of issues of public importance with respect to not only border law, but also with respect to subsection 24(2) of the Charter. If the SCC decides to grant leave, the impact of its decision will be significant. For background, click here.

Background

Mr. Canfield and Mr. Townsend were each charged with possession of child pornography after their respective cell phones and laptops were searched at the Edmonton Airport by CBSA Border Services Officers ("CBO or CBOs"). Each of the searches was conducted at secondary inspection.⁸

On questioning at primary inspection, the CBO found indicators that Mr. Canfield had been travelling for sex tourism for women and children, and referred him to secondary inspection. At secondary inspection, Mr. Canfield began sweating profusely and sex aids were found in his luggage. The CBO asked Mr. Canfield if he had child pornography on his cell phone. He confirmed that he did and showed the CBO related images from his cell phone.⁹

Mr. Townsend was similarly questioned at primary inspection. The CBO found Mr. Townsend's travel pattern and demeanor unusual and referred him to secondary inspection. At secondary inspection, a laptop and 11 other electronic devices were found. The CBO asked for the password to the laptop, which Mr. Townsend provided under the statutory compulsion of paragraph 99(1)(a) of the Act, and images of child pornography were found.¹⁰

At trial, both accused challenged the constitutionality of paragraph 99(1)(a) of the Act. The trial judge found that there was no reasonable expectation of privacy for a search of personal electronic devices under the Act, such that their section 8 rights were not engaged. The trial judge held that such a search merely engaged the "routine questioning which every traveller undergoes at a port of entry" (and that, in any event, such infringement would have been saved...