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Border Searches Ruled Unconstitutional

  • November 15, 2020
  • Heather Ferg

Canadian constitutional law recognizes that international travellers have a reduced expectation of privacy when crossing the border. Border officers have extraordinary powers to question, detain, search and seize that are grounded in the right of Canada to protect its national sovereignty. Until recently, border officers could demand passcodes and rifle through personal electronic devices virtually at will. However, on October 29, 2020, the Alberta Court of Appeal struck down s. 99 of the Customs Act as unconstitutional because it permitted the indiscriminate search of travellers’ cellphones and computers.

1. Introduction

Border crossings offer a unique opportunity for the state to gather sensitive information that can be retained and shared for any number of purposes. Travellers are routinely subjected to search and questioning. The increased digitization of identification technology means that copious amounts of biometic and other data can be collected and stored with ease.

The Canada Border Services Agency (CBSA) is responsible for providing integrated border services that support national security, public safety and the free flow of goods and people across the border. According to its website, the CBSA administers some 90 acts, regulations and international agreements, and operates at 117 land crossings, 13 international airports and 27 rail sites.

2. Canadian Border Searches

Border services officers are given their search powers by ss. 98 and 99 of the Customs Act. Section 98 deals with searching persons and essentially provides that a traveller entering Canada may be searched if an officer has reasonable grounds to suspect that the person has controlled goods or evidence of a Customs Act contravention secreted on their person. The reasonable suspicion standard is a common threshold in Canadian search law, as explained here.

Section 99 deals with officers’ powers to examine goods. Section 99(1)(a) provides that at any time up to the time of release, officers may examine any goods that have been imported and open any package or container of imported goods to take samples. The word “goods” is defined to include “conveyances, animals and any document in any form.” Electronic devices such as cellphones and computers have historically been characterized as “goods” in the relevant case law.

3. The Law Reconsidered

The leading authority on the constitutionality of border searches is the 1988 ruling by the Supreme Court of Canada in R v Simmons. In that case, which involved body searches, the court held that for constitutional purposes, there are three types of border searches: (1) routine searches such as questioning, baggage searches and pat-downs; (2) strip searches; and, (3) body cavity searches. The Simmons court held that the first category of routine searches does not engage constitutional scrutiny. Until now, cellphone and computer searches have been found to fall within the first category and have not attracted Charter protection. Unsurprisingly, the Simmons court was not particularly concerned with protecting the troves of data that might be on someone’s iPhone some 30 years ago.

Last month, in R. v. Canfield, the Alberta Court of Appeal held it was time to reconsider Simmons. A court may revisit binding precedent where there are new legal issues raised due to developments in the law or if a change in circumstances fundamentally shifts the parameters of the debate (see: R. v. Bedford at para. 42). The court held that computers are a “multi-faceted instrumentality without precedent in our society” and  the “significant developments”  in personal electronic devices which have occurred since 1988 merited attention (at paras. 28 and 31). Since the landmark case of R. v. Morelli in 2010, the Supreme Court of Canada has repeatedly emphasized that it is “difficult to imagine a more intrusive invasion of privacy than the search of a home or personal computer” (see: R. v. Morelli, R. v. Vu, R. v. Cole, R. v. Jones and R. v. Reeves).

4. The Positions of the Parties

In Canfield, the Crown sought to uphold s. 99 of the Act on the grounds that limitations on CBSA’s search powers would undermine their ability to perform their mandate. The Crown called numerous witnesses including border service officers, as well as Mr. Denis Vinette, the Director General of the International Region Operations Branch of the CBSA. Mr. Vinette gave oral and affidavit evidence and was qualified as an expert in CBSA operations, policies, and procedures. Between April 2015 and April 2016, CBSA processed over 92 million individual travellers. Mr. Vinette could not say how many laptops or cell phones were searched but the evidence was that such searches were “quite common” and “standard procedure” and that they could take up to 45 minutes (para. 93).

The appellants argued they had a reasonable expectation of privacy in their electronic devices regardless of being at an international border crossing. The power to indiscriminately scour an individual’s device without grounds infringes the Charter of Rights and Freedoms in a manner that cannot be justified in a free and democratic society. Section 99(1)(a) of the statute provides no limits on the examination of imported goods. In contrast, s. 99(1)(b) provides that mail can only be opened based on the reasonable suspicion standard. Crossing the border with an electronic device, they argued, “is akin to crossing the border with every piece of mail a traveller has ever sent or received” (para. 73). There should be some form of statutory limitation.

5. Unlimited Search Powers Are Unreasonable

The Alberta Court of Appeal accepted that maintaining a secure border is vital to maintaining national sovereignty and that searching goods (including electronic devices) is rationally connected to that objective. The court did not accept that the measure in question (i.e., the unlimited search power) was crafted so as to minimally impair constitutionally protected rights of those involved. The panel pointed to several other provisions in the statute that require a reasonable suspicion and rejected the Crown’s claim that such a threshold would frustrate the CBSA’s objective of ensuring effective border security. In fact, CBSA’s own policies contained limitations on when electronics should be searched, but they were policies, not law. The court also referred to s. 139(1) of the Immigration and Refugee Protection Act which provides that persons seeking to enter Canada and their luggage may be searched where an officer believes on reasonable grounds that the person has not revealed their identity, is involved in smuggling people, human trafficking, or document fraud (or possesses documents in relation to any of the same) (para. 100). If reasonable grounds are required in such circumstances, certainly reasonable suspicion is a workable standard in the case of electronic devices.

In the final balancing, the court held that “the deleterious effects to personal and digital privacy enabled by s. 99(1)(a) are substantial, and provide compelling reasons to curtail unfettered search powers of electronic devices at the border.” The court also recognized (citing Chan and Hasan. Digital Privacy: Criminal, Civil and Regulatory Litigation) that “[u]nder a broad and plenary power to search personal electronic devices, advances in technology may make mass surveillance at the border entirely possible in the near future” (para. 108).

The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force and effect. The Alberta Court of Appeal ultimately held that s. 99(1) of the Customs Act is unconstitutional to the extent that it applies to searches of information contained on personal electronic devices and  declared it to be of no force and effect. As is common with cases of this nature, the declaration of invalidity was suspended for one year to give Parliament an opportunity to craft a constitutionally-compliant framework that appropriately balances the competing interests at play.

6. Conclusion

The digital era has ushered in a golden age of data collection. While border guards may no longer search personal electronic devices at will (at least in Alberta), manual searching is only one tool at the state’s disposal. In terms of broader trends, travellers are increasingly providing personal information voluntarily. Canada and other countries are developing systems of “known traveller” profiles. As explained by Tamir Israel of the Canadian Internet Policy & Public Interest Clinic at the University of Ottawa (here), the profiles contain medical, financial, educational and other information which is compiled into a “trust score” and linked to the traveller through facial recognition systems. The profiles are presently designed for travel but are ultimately intended to facilitate access to other civic services such as health care, banking and voting. In considering any new legislative framework governing border searches, Parliament must also consider how manual searches are conducted in conjunction with other intrusive technologies and extensive data collection.

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