Search of Electronic Devices at Border Unconstitutional
It is not uncommon for Canada Border Services Agency to search electronic devices when travelling across the border. The law aside, the practice is an extreme violation of one’s right to privacy. These types of cases were addressed by the Alberta Court of Appeal in R v Canfield. The Court found that the Canadian Border Services Agency infringed on the rights of two men charged with child pornography offences after their cell phones were searched at the Edmonton International Airport.
Many years ago, in 1988, the Supreme Court of Canada had ruled that there is a lower expectation of privacy at the border for those looking to enter Canada. Routine questioning, searches of bags, and pat downs/frisk searches outside one’s clothes do not offend the Charter.
The Customs Act allows the Canadian Border Services Agency to conduct routine examinations of “goods”. Searches of personal electronic devices have historically been considered to fall within that allowable routine examination of “goods”. The trial judge followed this approach and determined the searches to be valid and constitutional.
In the case of R v Canfield, 2020 ABCA 383, the Alberta Court of Appeal decided that there has been a sufficient change in context, developments in technology and device usage, developments in the law relating to searches of electronic devices in other contexts, and time to allow for a reconsideration of this issue of searches of electronic devices at the border.
The Court ruled that section 99(1)(A) of the Customs Act is unconstitutional, meaning, it violates the rights of travelers. The problem with the section, and the reason why it was ruled unconstitutional, is that it puts no limits on searches of devices at the border. That is a violation of the right to be free from unreasonable search and seizure where there is a reasonable expectation of privacy.
The Court held that the definition of “goods” under the Customs Act does not include contents of personal electronic devices.
Unfortunately, the Court gave Parliament one year to craft legislation that would comply with the Charter so these rulings will not take effect for a year and it will remain to be seen how Ottawa deals with the ruling.
The two accused in this case had a direct interest in the data or informational content of their devices that were searched. The concern is about informational privacy and allowing individuals to decide for themselves how, when, where, and to whom information is shared. As such, they had a subjective or individual/personal expectation of privacy in their devices. This individual expectation of privacy was also reasonable given the personal electronic devices often contain highly personal and sensitive information. It goes to what courts refer to as a “biographical core” of personal information. Computers and internet connected devices “contain the details of our financial, medical, and personal situations” and “reveal our specific interests, likes, and propensities, recording in the browsing history and cache files the information we seek out and read, watch, or listen to on the Internet.”
The concern in the context of international borders is in balancing the high expectation of privacy in devices with the low expectation of privacy at the border given safety concerns and the need to protect the country. The Court recognized that some commonly stored information on personal electronic devices must be given to border staff during routine screening. An example would be receipts relating to the value of imported goods and travel documents. Reviewing such items on a device would not be an unreasonable search.
A second related issue dealt with by the Court is determining when is someone detained at the border and when they have a right to contact a lawyer. Detention at the border occurs when routine questioning turns more intrusive based on a “strong particularized suspicion” that has significant legal consequences. Searches of electronic devices for reasons beyond routine screening is an example of a shift to a more invasive inquiry. Routine screening, as already mentioned, could include receipts and travel documents in electronic format but would not include searching all of a traveller’s emails or photos.
A third and final related issue dealt with by the Court is whether routine questioning and searches engages the principle against self-incrimination. They ruled that it generally does not, however, again, if the routine questioning and searches become more intrusive and results in detention, then the right to remain silent is engaged. In other words, during routine questioning and searches, answers given to questions may be used in court proceedings without violating a right to silence or the principle against self-incrimination.
Commentary
Overall, this case should be generally welcomed by most. Given the extent of information and private portions of our lives that are located on our phones, computers, or tablets, it is in the interests of privacy that not all of that be revealed simply because we choose to travel and at the whim of a border agent. The Court rightly does a careful balancing with the recognition the security of our country is at stake and there needs to be some heightened safety measure for those attempting to gain entry to the country. The Court has recognized that it is far too overbearing and far reaching to allow the practice of border agents simply going through anyone’s personal devices containing intimate and private pieces of their lives. The Court drew a fairly clear line by which Parliament can have an understanding of the kinds of searches of personal devices that may be allowed routinely, versus the far more intrusive practices of going through all communications and photos, for example. It remains to be seen what tightening of these general guidelines and threshold to search that Parliament may impose and if this case is brought to the Supreme Court, what the highest court has to say about this issue.