While getting on an international flight seems like a distant memory, most of us are familiar with searches at the border. Whether it’s a border services officer searching your hand luggage or inspecting any liquids you are carrying, we are aware that we must surrender some of our property to search. But what about electronic devices? Can Canadian border agents search your phone or laptop, for example?
Until very recently, that answer was yes, they can. Border agents were entitled to search your phone or laptop, or other electronic devices and they did not even require a reasonable suspicion in order to do so.
A recent decision from the Court of Appeal of Alberta, however, ruled that searches of electronic devices at the border are unconstitutional. The decision means lawmakers need to revisit the legislation to include a provision governing how searches of electronic devices are conducted at the border.
Were Canadian border agents ever permitted to search your phone or laptop?
The ability of Border Services to search people’s electronic devices relied upon Section 99(1)(a) of the Customs Act. The section states:
An officer may 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.
“Goods” is defined as “conveyances, animals and any document in any form”. Until now, phones and laptops fell under this definition. However, the leading case on the constitutionality of searches at the border, R v Simmons, dates back to 1988, long before everyone carried electronic devices around with them. A review of people’s constitutional protections at the border was long overdue.
R v Canfield
The recent Court of Appeal of Alberta decision, R v Canfield, revisited a Supreme Court of Canada ruling. The case involved two men, Sheldon Canfield and Daniel Townsend, who were convicted of possession of child pornography. The Canadian Border Services Agency retrieved photos and videos from a cell phone and laptop during a s. 99(1)(a) search at Edmonton International Airport.
The two men appealed a Supreme Court of Canada ruling that upheld their convictions with the Court of Appeal of Alberta. They called no evidence but instead argued that s. 99(1)(a) of the Customs Act is unconstitutional because it permits border agents to conduct routine searches of people’s electronic devices without reasonable suspicion. Specifically, they said the law infringes: Section 8 of the Charter, which states everyone has “the right to be secure against unreasonable search and seizure,”; s. 10 which protects the right to consult a lawyer and habeas corpus; and s. 7 which ensures the right not to be unlawfully deprived of life, liberty and security.
The Court of Appeal found that the trial judge erred by failing to recognise that the law should be revisited to consider the constitutionality of routine searches of electronic devices. It declared that the searches infringed upon the men’s Charter rights. Section 99(1)(a) violated s. 8 of the Charter because it placed no limit on the searching of electronic devices and as such amounted to an unreasonable search.
The Court of Appeal stated: “We declare that the definition of ‘goods’ in s 2 of the Customs Act is of no force and effect insofar as it includes the contents of personal electronic devices for the purpose of s 99(1)(a) of the Customs Act.” However, the Court suspended its declaration for one year in order to provide Parliament time to amend the legislation.
The Court stopped short of excluding the evidence against the two men and upheld their convictions. It found the border agents acted reasonably believed the searches were permitted. Also, the Court stated: “On balance, society’s confidence in the justice system is best maintained through the admission of the evidence.”