Winner of 2019 Privacy and Access Law Student Essay Competition

  • August 22, 2019

Unstoppable Search Meets Immovable Expectation of Privacy: Resolving Charter Tensions in Digital Device Searches at the Border

Justin Roy, University of Ottawa Faculty of Law[*]

In March 2015, Alain Philippon arrived at a customs checkpoint in Halifax Stanfield International Airport. The 38-year-old from Ste-Anne-des-Plaines, Quebec was returning home from the Dominican Republic.[1] When customs officials asked to search the contents of his BlackBerry, Philippon refused to divulge the device’s password. For this, he was charged with hindering a border officer; he decided to fight the charge.[2]

But over a year later, on the eve of his trial, Philippon pled guilty.[3] Privacy experts declared the outcome a “missed opportunity” to have courts examine the legal authority upon which customs officials rely to search digital devices at the border.[4] Other commentators have called this legal footing “troubling”, “problematic”, and “old-fashioned”.[5]

When we cross international borders, we expect some scrutiny from customs and immigration officials.[6] That said, should we expect or accept that those officials will rifle through the deeply personal information stored on our electronic devices?[7] Within Canada’s Charter of Rights and Freedoms, section 8 guards against unreasonable searches and seizures.[8] The unsettled legal question, however, is how Canadian courts should apply this constitutional protection when Canada Border Services Agency (CBSA) agents search our digital devices at Canada’s borders.[9]

This unsettled question carries real consequences; Alain Philippon’s story was but the first high-profile example. Consider that CBSA screened over 96 million travellers in 2018,[10] averaging over 260,000 every day. Given the average airline passenger carries at least two electronic devices,[11] the question appears to be when, not if, these device searches will be challenged under the Charter. This paper argues that courts will likely find these searches unconstitutional in their current incarnation. To preempt Charter challenges, the government should fix how CBSA searches travellers’ digital devices.

This paper proposes a Charter-compliant approach for these searches. Part 1 briefly introduces section 8 of the Charter and the theory at its heart: the reasonable expectation of privacy. Part 2 sets the stage with the apparent incongruity in the section 8 case law: low privacy interests at the border, but high privacy interests in digital devices. Part 3 predicts the outcome of an eventual Charter challenge: CBSA’s current approach likely violates section 8. Part 4 recommends an updated method for border searches of digital devices, based on an independent review body. Part 5 concludes by predicting the future directions of this issue.

Part 1 — Section 8 of the Charter

A. The Construction of a Section 8 Violation

Section 8 secures against “unreasonable search or seizure.”[12] Therefore, to establish a section 8 violation, a claimant must prove two elements.[13] First, the disputed state act must have constituted a “search or seizure”. To prove this, the claimant must show that the act invaded his or her “reasonable expectation of privacy”, which is assessed based on “the totality of the circumstances”.[14] If not, section 8 is not engaged because the act would not meet the definition of a “search or seizure”. Second, after proving that a search or seizure took place, the claimant must show it was “unreasonable”. Searches or seizures conducted without a warrant are presumed unreasonable; in these cases, the onus shifts to the state to demonstrate that its conduct was reasonable.[15] For these “warrantless” searches, courts apply the three criteria from R v Collins[16] to determine whether a given search or seizure is, despite the absence of a warrant, nevertheless reasonable: “the search must be authorized by law, the law itself must be reasonable, and the search must be carried out in a reasonable manner.”[17] Note how the first element (“Was there a search or seizure?”) represents a gateway to the protections built into the second element (“Was it reasonable?”). Once a court finds that a search or seizure took place, this opens the door for the court to analyze the search or seizure under section 8.[18]

Once a court finds that a given search or seizure infringes section 8, the analysis will then turn to justification and appropriate remedies. Generally speaking, section 8 infringements are unlikely to be justified under section 1, especially given the internal “reasonableness” test within section 8 itself.[19] This leaves remedies. Courts remedy Charter breaches through either section 24 or section 52(1) of the Constitution Act, 1982.[20] In the Charter context, these two sections serve different purposes: “Section 52(1) provides a remedy for laws that violate Charter rights either in purpose or in effect. Section 24(1), by contrast, provides a remedy for government acts that violate Charter rights.”[21] For example, in R v Marakah,[22] the Supreme Court applied section 24 to remedy a government act: the Court excluded evidence the police had obtained in a way that infringed the accused’s Charter rights. In contrast, R v Tse [23] offers an example of a section 52(1) remedy. In that case, the Court granted a section 52(1) remedy by striking down a federal law that authorized warrantless wiretapping, specifically the emergency wiretap provision in the Criminal Code,[24] because it did not withstand scrutiny under section 8 of the Charter. As in Tse, statutes that authorize warrantless searches are subject to section 8 challenges and, where those challenges are successful, courts can declare the law unconstitutional under section 52(1).

B.The Normative Foundation of Section 8

At its core, section 8 protects a reasonable expectation of privacy. Where a court finds none, section 8 is not engaged. It should come as no surprise that this threshold question has become “a major battleground” in section 8 cases.[25] On the surface, the Supreme Court might appear to have settled this question with the Edwards “totality of the circumstances” test and its accompanying factors.[26] However, several scholars contend that the Court has yet to resolve the normative tensions underlying the reasonable expectation of privacy.[27]

This division stems from two diverging approaches for assessing a claimant’s privacy interests. While the Court has settled on “a normative rather than a descriptive standard”[28] to ascertain an expectation of privacy, Professor Hamish Stewart has traced two discrete normative strands through the case law: the “risk approach” and the “surveillance approach”.[29]

On the one hand, the risk approach queries whether others[30] could have gained access[31] to the evidence or information. The Court applied this approach in Edwards, where Justice Cory, writing for the majority, found that the accused held no reasonable expectation of privacy in his girlfriend’s apartment because “[h]e was no more than a privileged guest” there.[32] Justice Cory reasoned that, because the girlfriend could admit anyone she wanted into her own apartment, the accused “lacked the authority to regulate access to the premises”, so he could not reasonably expect privacy there.[33] In the majority’s view, when the accused chose to store belongings there, he assumed the risk they could be discovered by a stranger, including a police officer.[34]

A minority of the Supreme Court bench continues to adhere to this view. For example, in Marakah,[35] the Court assessed whether the accused held a reasonable expectation of privacy in text messages sent to another person. Justice Moldaver, joined by Justice Côté, seemed to apply the risk approach. In his dissenting reasons, Justice Moldaver found that the act of sending a text message to another constitutes a relinquishing of control. “[W]hen an individual assumes the risk of public access, they are equally assuming the risk of state access. … The risks of state access and public access are not distinct for the purposes of the reasonable expectation of privacy test.”[36] The majority disagreed and rejected the risk approach: the risk of public access does not negate the reasonable expectation of privacy.[37] In the similar case of R v Reeves,[38] a majority of the Court again rejected the risk approach to find that the accused maintained a reasonable expectation of privacy in a computer he shared with his spouse.[39] Justice Moldaver concurred with the majority, while Justice Côté penned dissenting reasons that seemed based on the risk approach. In her view, the accused lacked exclusive control of the computer, so he effectively accepted the risk that his spouse could consent to its seizure by police. Though the risk approach persists even in these recent cases, the Court seems to have shifted to an alternative approach.

That alternative, the surveillance approach, centres on whether the investigative technique intrudes on privacy in a way that raises concerns about its unfettered use.[40] Writing for the majority in R v Duarte,[41] Justice La Forest applied this approach to find that the accused held a reasonable expectation of privacy in his conversations.[42] Police had installed recording equipment in an informant’s apartment. They used this equipment to record the accused engaged in an incriminating conversation. Where the risk approach would favour the argument that “a man has no one but himself to blame if he is confounded by his own words”,[43] Justice La Forest instead considered whether the risks of warrantless surveillance “should be imposed on all members of society”.[44] Justice La Forest ultimately rejected this imposition and deemed the warrantless surveillance “clearly unconstitutional.”[45] A majority of the Supreme Court has upheld the surveillance approach ever since.[46]

Professor Stewart also favours the surveillance approach.[47] In his view, it better encapsulates the essential normative question: whether “the state should be able to use [a given] technique without any legal authorization or judicial supervision.”[48] He explains that the choice between the risk and surveillance approaches should depend on what section 8 was really designed to protect. In his view, privacy is necessary to be human,[49] because it enables individuality, intimacy, and self-presentation—all closely related to other Charter rights.[50] These values underpin section 8. Having established this normative basis, I will now set the stage for the apparent conflict between privacy at the border and privacy in digital devices.

Part 2 — Countervailing Expectations of Privacy

A unique legal overlap occurs when a CBSA officer searches a traveller’s digital device. The Supreme Court has assigned a special status to border searches,[51] ruling that travellers should reasonably expect CBSA agents to question them and, in some cases, conduct searches. Conversely, the Court has also recognized the intense privacy interests in personal digital devices.[52] This Part introduces these seemingly contradictory judicial trends. Then, Part 3 assesses how these trends interact to generate a constitutional problem.

A.The Special Status of Border Searches

Searches at the border differ from searches elsewhere in Canada. The Supreme Court has repeatedly affirmed the exceptional nature of border searches, exemplified in three leading cases.

(1) R v Simmons[53]

The Court first applied the Charter to border searches in Simmons. The accused brought a Charter challenge against warrantless search powers granted by the Customs Act.[54] Given the relative novelty of the Charter at the time (1988), Chief Justice Dickson referred to American case law applying the Fourth Amendment[55] to border searches. He cited a unanimous US Supreme Court in United States v Ramsey,[56] where Justice Rehnquist confirmed that warrantless border searches are reasonable because “the person or item in question…entered into our country from outside”. In Justice Rehnquist’s view, this entry from outside negated the need for probable cause.[57]

Chief Justice Dickson accepted this reasoning. In doing so, he carved an exception out of the robust protections against warrantless searches that he had articulated in Southam, just four years before.[58] The Chief Justice justified the exceptional nature of border searches in two ways. First, he acknowledged the state’s important interests in protecting its borders: “sovereign states have the right to control both who and what enters their boundaries.”[59] Second, he agreed that travellers have a lower expectation of privacy at a border crossing: they expect a screening process that typically requires everyone to, at a minimum, provide identification, travel documents, and a declaration form.[60]

However, Chief Justice Dickson limited this exception. Observing that some border searches can be more intrusive than others, he listed three types, each with escalating intrusiveness: (a) routine questioning and baggage searches; (b) strip or skin searches; and (c) body cavity searches.[61] He described the overarching rule that the greater the intrusion on a traveller’s privacy, the greater the constitutional protection, and, therefore, the greater the burden on the state to justify the intrusion.[62]

In Simmons, Chief Justice Dickson only addressed the second type of search. The accused was asked to undress, so the Chief Justice found this was a strip search.[63] He went on to find that warrantless strip or skin searches were authorized by the Customs Act, and these laws were reasonable under section 8, for two reasons: the officers must have formed a reasonable suspicion, and the search decision was subject to review.[64] According to Chief Justice Dickson, these two safeguards were enough to bring warrantless strip or skin searches into compliance with section 8 privacy rights.

(2) R v Monney[65]

Writing for a unanimous Court in Monney, Justice Iacobucci confirmed that the border context changes the section 8 calculus. After cautioning that the Court’s general section 8 case law may not necessarily prove relevant for border searches,[66] Justice Iacobucci imported the overarching “greater the intrusion, greater the protection” rule from Simmons: “the more intrusive the search, the greater the degree of constitutional protection required in terms of the standard of suspicion or belief which must be met prior to subjecting a traveller to a search by customs officers.”[67] The Monney decision also endorses the view from Simmons that travellers have a lower reasonable expectation of privacy at the border.[68]

(3) R v Jacques[69]

In Jacques, the Court split 3–2 on whether a section 8 breach had occurred. A police officer had stopped and searched the accused’s car on a rural road near—but not at—the Canada–US border, based on an uncertain report of a car entering Canada through an uncontrolled road crossing.

Writing for the majority, Justice Gonthier deemed the search reasonable. Finding that travellers crossing international borders expect “routine questioning and inspection”,[70] he applied the three criteria from Collins:[71] the search was authorized by the Customs Act,[72] the law was reasonable, and the search was carried out in a reasonable manner.[73]

In dissent, Justice Major[74] also applied Collins, but he reached the opposite conclusion. In his view, section 99(1)(f) of the Customs Act only authorizes warrantless searches once officers have reasonable grounds to suspect an offence. Having found no such grounds in the facts, Justice Major deemed the search unauthorized by law and, therefore, deemed that the search had breached section 8.[75]

Despite the diverging reasons in Jacques, the Court unanimously supported a lower expectation of privacy at the border.[76] Though the state interests in border searches are strong, the Jacques decision demonstrates that these searches remain subject to section 8 limits.

As the leading cases of Simmons, Monney, and Jacques demonstrate, courts treat section 8 differently at the border. When travellers cross international boundaries, they expect some state intrusion into their privacy because states have a strong interest in protecting the integrity of their borders. With this first judicial trend established, I turn now to introduce the trend that seems to be pulling courts in the opposite direction.

B.Strong Protections for Digital Devices

Computers are everywhere: on our desks, in our pockets, and around our wrists. By creating devices that are ever more personal, the consumer technology industry has no doubt transformed the way we do just about everything.[77] The digital revolution can provoke shifts in the relationship between the individual and the state,[78] which could thrust section 8 into the spotlight.

In the leading “digital section 8” cases, the Supreme Court has responded to this shift by attaching very strong privacy interests to digital devices, describing them as windows into our private lives. Because several scholars have already helpfully summarized these cases,[79] I will present only three broad themes: the unique approach to computers, the balancing of state interests, and emerging technologies.

(1) “Computers are different”[80]

Beginning with R v Morelli,[81] the Supreme Court has recognized that digital searches represent serious privacy intrusions: “It is difficult to imagine a search more intrusive, extensive, or invasive of one’s privacy than the search and seizure of a personal computer.”[82]

Writing for a unanimous Court in R v Vu, Justice Cromwell identified five reasons why courts should not treat computers like traditional receptacles for the purposes of section 8.[83] Computers have comparatively “massive storage capacity”; they can contain “an almost unlimited universe of information”.[84] Within this universe lives virtually every aspect of a user’s private self: intimate conversations, medical records, and even a user’s interests in highly embarrassing subjects like, as one scholar suggests, Nickelback.[85] Beyond what we choose to store on them, computers are also “fastidious record keeper[s]”:[86] they track all sorts of activities without our input or knowledge. This metadata can help a user “retrace his or her cybernetic steps” but can also reveal details about a user’s thoughts, beliefs, and routines.[87] Even if a user tries to delete data, files can often be recovered with forensic tools.[88] Finally, but crucially, computers seldom represent isolated receptacles of information. Most modern computers connect to networks and access data stored elsewhere, so the more apt analogy is a portal, not a bucket.[89] Based on all of these differences, Justice Cromwell concluded that computer searches require prior authorization; a system that reviews the search after-the-fact would not satisfy section 8.[90]

(2) Balancing countervailing state interests: R v Fearon[91]

Despite this strong privacy interest, the Court has permitted warrantless searches of digital devices where necessary to properly balance countervailing state interests. For example, in Fearon, the Court split 4–3 on the common law power of search incident to arrest.

Justice Cromwell wrote for the majority. While he acknowledged the unique nature of computers,[92] he cited the need to appropriately balance privacy interests with law enforcement needs.[93] To achieve this balance, he opted to modify the common law test and allow device searches incident to arrest. However, he circumscribed the power in three ways to “limit the potential invasion of privacy” that may result from a device search.[94] First, he required that searches be tailored to their “valid law enforcement” purpose, preventing the police from fishing endlessly for any shred of incriminating evidence.[95] Second, he curtailed the power when police use it to discover evidence: the search is only permitted where necessary to continue an ongoing investigation.[96] Third, to facilitate effective review after-the-fact, officers must take detailed notes of the extent and nature of the search.[97]

In dissent,[98] Justice Karakatsanis would have excluded digital devices from the common law power of search incident to arrest. In her view, the legitimate needs of law enforcement are adequately served by other legal tools: police can resort to their powers under the exigent circumstances doctrine, or, if no such circumstances exist, they can apply for a telewarrant.[99]

Some scholars consider the majority reasons in Fearon an outlier in the Court’s line of otherwise sound decisions on digital section 8 issues.[100] One scholar described the Fearon majority reasons as an attempt to “squeeze a Digital Age problem back into an Analog World box.”[101] However, in recent section 8 decisions, the Court has continued to recognize strong privacy interests in digital devices.[102] The Fearon majority reasons may simply reflect the strength of the countervailing state interest present in the particular facts of that case.

(3) A factual approach to emerging technologies

The Court has professed an analytical approach to emerging technologies rooted in present capability, avoiding speculation about the future. For example, in R v Tessling,[103] Justice Binnie expressed the view that “technology must be evaluated according to its present capability. Whatever evolution occurs in future will have to be dealt with by the courts step by step.”[104] The Court appears to prefer rooting its analysis in the factual record, not conjecture.

One scholar[105] offers Fearon as another example. There, the majority briefly considered whether the presence or absence of a device password should determine the privacy analysis.[106] Rather than attach legal meaning to passwords, the majority took a normative approach: “[a]n individual’s decision not to password protect his or her cell phone does not indicate any sort of abandonment”.[107] The Court appears to have eschewed an overly technical debate and dodged a discussion about the particular security features available or activated on the device.[108]

Together, these three themes coalesce into a practical approach that assigns digital devices strong privacy interests but remains attuned to countervailing state interests. However, this approach remains untested in the border context where, as discussed above, courts have found a reduced expectation of privacy. These trends seem to pull in opposite directions, creating a tension that will likely culminate in a challenge under section 8 of the Charter—unless, of course, Parliament intervenes first.

Part 3 — The Constitutional Problem

The stage is now set with the “unstoppable” border search and the “immovable” expectation of privacy in digital devices. An inevitable Charter challenge[109] to a CBSA digital device search will cause these judicial trends to collide. I predict that a court would find a section 8 problem with CBSA’s current legal justification for device searches at the border. To preempt this constitutional problem, the government should, as I suggest in Part 4, reform the legal basis for device searches to clarify the search threshold and to ensure robust protections against abuse.

My prediction is based on a section 8 analysis, rooted in Supreme Court case law, and is supported by similar views expressed by Parliamentarians, experts, and scholars.

A.The Current Legal Reasoning: CBSA Guidelines and Related Statutes

In August of 2016, the British Columbia Civil Liberties Association published a series of internal CBSA documents obtained under the Access to Information Act.[110] Within these documents is Operational Bulletin PRG-2015-31, entitled “Examination of Digital Devices and Media at the Port of Entry – Interim Guidelines”.[111] In these Guidelines, CBSA outlines its legal authority to search digital devices and offers guidance on proper search procedure.

According to the Guidelines, CBSA classifies digital devices and media as “goods” that can be inspected.[112] The Guidelines trace this authority to the Customs Act [113] and the Immigration and Refugee Protection Act (IRPA).[114]

To begin, the Customs Act defines the term “good” very broadly. The definition includes “conveyances, animals and any document in any form”.[115] The Guidelines appear to characterize “digital devices and media” as a form of document.

Section 99(1)(a) of the Customs Act authorizes officers to search all imported goods for customs purposes.

99 (1) An officer may
(a) 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;[116]

CBSA notes that Section 99(1)(a) authorizes warrantless searches with “no threshold for grounds to examine” devices. In other words, the law authorizes CBSA officers to search any device, without justification. Nevertheless, the Agency reminds its officers of internal policy, which dictates that they should only search devices where they detect “a multiplicity of indicators” that the device may contain evidence of a customs offence.[117]

Turning now to IRPA, where section 139(1) authorizes warrantless searches for immigration enforcement. However, unlike the Customs Act, before an IRPA search, officers must form a reasonable belief that an immigration offence is being committed.

139 (1) An officer may search any person seeking to come into Canada and may search 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
(a) has not revealed their identity or has hidden on or about their person documents that are relevant to their admissibility; or

(b) has committed, or possesses documents that may be used in the commission of, an offence referred to in section 117, 118 or 122.[118]

The Guidelines note the required grounds (reasonable grounds to believe) and caution that the search must be confined to the specific purposes listed in paragraphs (a) and (b).

After outlining these legislative authorities, the Guidelines caution officers to carefully tailor any device searches to CBSA’s core customs and immigration duties.

[Device searches] must always be performed with a clear nexus to administering or enforcing [CBSA] legislation…. [O]fficers shall not examine digital devices and media with the sole or primary purpose of looking for evidence of [any] criminal offence…. Officers must be able to explain their reasoning for examining the device…. The officer’s notes shall clearly articulate the types of data they examined, and their reason for doing so.[119]

This caution appears to be designed to respond to concerns that CBSA officers could abuse their search powers by, for example, embarking on “fishing expeditions” for evidence of general criminal offences.

B.Testing this Legal Reasoning Against Section 8

Part 1 introduced the section 8 framework, as established by the Supreme Court. Based on this analytical framework, the CBSA’s legal reasoning likely does not satisfy section 8.

I pause to add a note on remedies under sections 24(1) and 52(1). Rather than imagining a detailed fact scenario, which a court could remedy under section 24(1), a scenario that engages section 52(1) remedies is preferable because it would impact the law nationwide.[120] In section 8 cases where 52(1) remedies have been granted,[121] the claimant succeeded by challenging the law that authorized the warrantless search. That is the analytical route I propose.

We can imagine a challenge against device searches at the border. As discussed above, CBSA Guidelines claim these warrantless searches are authorized under either section 99(1)(a) of the Customs Act or section 139(1) of IRPA. Warrantless searches are presumptively unreasonable; the state must prove that a warrantless search is, nonetheless, reasonable.[122]

Before moving to the reasonableness analysis, it is worth addressing section 8’s threshold question. In many customs cases, the Crown will cite Simmons to argue that first-level border searches do not engage section 8.[123] This argument suffers from three fatal flaws. First, the key point from Simmons is that privacy is attenuated at the border—it does not evaporate entirely. Second, section 8 case law has shifted considerably since Simmons was decided in 1988, particularly in 1996 when the Edwards decision set section 8’s current threshold question. Third, given the Supreme Court’s strong pronouncements on digital privacy,[124] it strains credulity to imagine a court assigning absolutely no expectation of privacy in a digital device simply because a traveler carries it across a border: “Border crossings are not Charter-free zones.”[125]

Turning to the second stage of the section 8 analysis, courts apply the three-part Collins test to assess whether a search is reasonable. “[T]he search must be authorized by law, the law itself must be reasonable, and the search must be carried out in a reasonable manner.”[126]

(1) The search is not authorized by law because digital devices are not “goods”

The “authorized by law” question asks whether the specific search technique is authorized by law. The CBSA Guidelines cite two laws, neither of which reference digital devices. The inquiry, therefore, turns on whether a digital device qualifies as a “good”.

One scholar suggests that courts analogize digital devices to suitcases.[127] “I see no intrinsic difference between the effects of the computer search … [and] a detailed examination of the contents of one’s suitcase.”[128] Five years later, the Supreme Court would categorically reject this false equivalence in R v Vu: computers are portals, not buckets or suitcases.[129] In Fearon, the Court again flatly rejected this suitcase analogy, calling it “unrealistic” to equate a cellphone with a briefcase or a document found in someone’s possession.[130] Given the intense privacy interests in digital devices, preauthorization is required before a device search.[131]

Despite the unique privacy protections afforded to digital devices, courts have yet to distinguish these devices from the Customs Act’s broad definition of “good”.[132] One could argue that this definition is necessarily limited to only those goods that are actually “imported” for sale and, therefore, the definition should not apply to travellers’ personal effects. For example, if I take a day trip to the American side of Niagara Falls, I do not “export” and then “import” the clothes I wear for the day—yet that is essentially CBSA’s position.[133] Nevertheless, I will proceed as though the search were authorized by law and into the second part of the Collins test.

(2) The law is unreasonable: unreliable, no review, suspicionless searches

At this stage of the analysis, the focus turns to balancing state interests and privacy.[134] The Supreme Court prefers a flexible approach here, rather than a “hard and fast” test.[135] Even so, three key factors have emerged that apply well to device searches at the border: the reliability of the search, the availability of review, and the threshold needed to conduct a search.[136]

First, the reliability of the search technique can influence the balancing.[137] In short, the more reliable the technique, the more likely the technique will be deemed reasonable, and vice versa. According to CBSA Guidelines, officers must disable Internet access while they examine devices, and they can only examine what is stored on the device.[138] Given the rise of cloud computing, this distinction between on-device and off-device data has grown increasingly antiquated. This problem will only worsen as consumer technology continues to gravitate towards cloud services. This technical shift creates troubling loopholes in CBSA’s search technique, open to even the least sophisticated criminals. With these loopholes, who will be exposed to the real privacy impacts: innocent travellers or criminals? With minimal effort, criminals could hide all of their data from CBSA scrutiny simply by uploading it to a cloud service and removing it from the device’s storage. These overt loopholes render the search technique unreliable and, therefore, unreasonable.

Second, the presence of procedural safeguards would lend reasonableness.[139] For warrantless searches, like CBSA device searches, the Supreme Court has deemed after-the-fact review an essential element of reasonableness.[140] Review is doubly important for warrantless computer searches, where the Court must carve exceptions into the mandatory preauthorization rule it set in R v Vu.[141] While challenges at trial can serve as a check on warrantless search powers, they are “not adequate as they will only address instances in which charges are laid and pursued to trial.”[142] In Fearon, the majority addressed this concern by requiring officers to record notes while they search a device incident to arrest.[143] Although the CBSA Guidelines indicate that officers should take notes as they examine a device,[144] this is hardly a legal requirement, and it could be removed at any time. Neither the Customs Act nor IRPA provide review mechanisms for the warrantless search powers in question. Accordingly, these warrantless search powers lack adequate review—this amounts to a “fatal defect” that renders the law unreasonable.[145]

Third, the law should set a threshold that properly tailors the search. “The looser the constraints on search and detention powers, the more likely they are to be used on innocent suspects.”[146] The warrantless search power authorized by the Customs Act carries no threshold whatsoever: under this law, CBSA officers could “seize and search the digital devices of every single traveller” crossing the Canadian border.[147] This potentially sweeping intrusion is even more troubling when considered alongside the deep privacy interests the Court has assigned to digital devices.[148] One scholar suggests that broad powers, without set thresholds, can lead to profiling and discrimination.[149] The absence of a threshold leaves this search power open to abuses and renders the law unreasonable.

Beyond these three factors, digital searches at the border are also arbitrary. A major goal of these searches appears to be stemming the flow of child pornography.[150] Though this goal is certainly laudable, we no longer live in a world of floppy disks: child pornography “moves through the internet, not customs.”[151] The crux of the problem is that these searches “simply do not further the objectives of border control. Instead, they give the state back door access to intensely personal information that it could not otherwise obtain.”[152] Simply put, these search techniques deliver few benefits but exact a high price in terms of our civil liberties.

In sum, this second “reasonableness” stage of the Collins test reveals a number of fatal flaws in the legal grounds CBSA uses to justify its searches of digital devices at the border. Due to these fatal flaws, the underlying laws are not reasonable.

(3)The search must be as nonintrusive as possible

The third stage of the Collins test assesses how the search was applied on the specific facts of a given case. I need not consider this stage of the test because this paper adopted a forward-looking analysis that focused on the laws rather than one specific search. In any event, the Supreme Court said in R v Vu that, for a search to be conducted in a reasonable manner, the search must be “no more intrusive than is reasonably necessary to achieve its objectives.”[153]

C. Concurring Expert Opinion

Though the law on digital border searches is “quite unsettled”,[154] experts have considered this constitutional question and reached similar conclusions. In 2017, the House Standing Committee on Access to Information, Privacy and Ethics (ETHI) released a report on privacy at the border.[155] Several scholars and civil liberties groups appeared before the Committee, as did the Privacy Commissioner of Canada. Many shared the concern, expressed by the Privacy Commissioner, that warrantless device searches violate the Charter, “even at the border.”[156]

Outside Parliament, several scholars have addressed this question,[157] and some propose solutions. Robert J Currie, for example, sees a Charter problem with the CBSA’s current approach.[158] He proposes a constitutional cure based on the majority’s approach in Fearon. Steven Penney, meanwhile, calls for a limited return of the “mere evidence” rule.[159] And Graham Mayeda calls for a wholly different approach to section 8 altogether, one that shifts the balancing of competing interests out of section 8 and into section 1.[160] Based on the constitutional flaws I have identified in this Part, I now propose a solution.

Part 4 — A Constitutional Solution

A Charter-compliant regime for digital device searches at the border would rely on independent, after-the-fact review. First, this Part briefly explains why a warrant-based system would not work effectively. Then, it presents an approach that would be authorized by a reasonable law that complies with section 8 of the Charter.

Section 8 operates best under a system of preauthorization. The goal of section 8 is to “prevent[] unjustified searches before they happen”,[161] which generally requires prior authorization, typically in the form of a warrant granted by a judge. While preauthorization should be used wherever possible, such a system would not work well for border searches of digital devices. First, on an average day, CBSA screens over 260,000 travellers.[162] Even if the Agency sought warrants for a tiny fraction of this daily count, the cost of obtaining and managing individual warrants would likely become unsustainable. Second, even if we assume a streamlined telewarrant system could satisfy section 8, any request-based system risks creating a permanent backlog and unacceptable delays for all travellers. While preauthorization represents the proper theoretical solution for section 8, the border context demands a practical alternative.

Instead, a better approach would recognize the unique countervailing state interests at the border. Recall that, to comply with section 8, a warrantless search must follow the three steps of the Collins test: the search must be (a) authorized by law, (b) reasonable, and (c) every search must be carried out in a reasonable manner.[163] To satisfy section 8, CBSA’s search powers must meet these three requirements.

First, CBSA’s digital device searches should be explicitly authorized by law. Rather than relying on “suitcase laws” written for another era, Parliament should reform the Customs Act to grant CBSA officers the power to search digital devices without a warrant, subject to clear conditions. The recent Parliamentary report also recommends writing this authorization into the Customs Act.[164] As I will now discuss, these conditions must be drafted carefully: they ensure the law complies with the second stage of the Collins test and, ultimately, section 8 of the Charter.

Second, the law must set an appropriate threshold. The Supreme Court has held that, at the border, the “reasonable grounds to suspect” threshold can comply with the Charter.[165] A higher threshold applies in criminal investigations: “reasonable grounds to believe”. I believe that the lower threshold represents the right balance between privacy interests and border security interests. In fact, the ETHI Report recommended the same threshold.[166] This lower bar could, in theory, expose more travellers to a warrantless device search, but appropriate review mechanisms should limit the risk of abuse.

Third, the law must provide mechanisms for effective after-the-fact review. To achieve a reasonable balance and satisfy section 8, this review system should be independent of CBSA. This would avoid blending workplace relationships with the serious job of investigating abuses of power. In order to effectively root out abusive or illegal use of warrantless search powers, the authorizing law must provide for an independent review body that can hear complaints, investigate, and issue effective remedies.

Some might argue that accused persons could challenge CBSA misconduct before a judge at trial. Though a section 8 challenge can typically be brought at trial, that option only materializes when a traveller is actually charged with an offence.[167] In contrast, section 8 requires a review mechanism that covers the opposite situation: travellers that experience an abusive or illegal device search but are not charged with a crime. Currently, those situations are governed by a complaints process that CBSA manages itself.[168] The CBSA has revealed it investigated around 1200 allegations of staff misconduct between January 2016 and mid-2018,[169] but the Agency has not revealed whether these investigations result in systemic changes. For this reason, civil liberties groups continue to call on the government to create an independent review body for CBSA.[170]

This review body need not be an entirely new creation. The law could hook into other administrative bodies that perform similar functions. The law could, for example, grant new review powers to the Office of the Privacy Commissioner of Canada or to the National Security and Intelligence Review Agency (NSIRA) proposed by Bill C-59.[171] Alternatively, the law could create an ombudsperson-type office attached to, but separate from, CBSA. Regardless of the specific institution, the review body must be independent of the Agency, and it must be granted the appropriate powers to investigate officer misconduct and prompt corrective measures.

In 2016, Public Safety Minister Ralph Goodale, the minister responsible for CBSA, identified this accountability gap before the Standing Senate Committee on National Security and Defence.[172] At the time, the Committee was studying Bill S-205, which would create an independent CBSA Inspector General with powers to review officer conduct and public complaints.[173] Goodale explained to the Committee that, while he supported the intent behind the bill, he preferred to approach national security reforms in a systemic rather than piecemeal fashion, especially since his ministerial mandate letter instructed him to review Canada’s national security legislation as a whole.[174] Bill S-205 ultimately passed third reading in the Senate in December 2016, but has not progressed since—likely because the Trudeau government had plans to introduce Bill C-59, its national security reform bill.[175]

Six months later, in June 2017, Goodale introduced Bill C-59 in the House of Commons. Although the bill contains a series of measures to improve the accountability of Canada’s national security agencies, it would only allow review for CBSA’s national security activities.[176] Therefore, the bill does little to address CBSA’s accountability gap, especially beyond the confines of national security review.

Fortunately, Minister Goodale has promised further reform. In response to media reports about CBSA officer misconduct, Goodale told CBC News that the government is preparing legislation to create “another unit ... that looks specifically at the issues of officer conduct or incident investigation.”[177] This legislation has yet to be introduced. If and when we see this legislation, we should assess whether it satisfies the requirements of section 8: it should prescribe warrantless searches in law, with a specific and appropriate threshold for digital devices, all complemented with effective review mechanisms.

However, the government may be satisfied with the current state of the law. In response to the ETHI Report, which recommended similar reforms to clarify the law on digital device searches and to implement effective review for CBSA, the government expressed general disagreement with these proposals.[178] Minister Goodale reiterated the Agency’s position that its Guidelines and “internal mechanisms” are sufficient to prevent abuse in digital device searches.[179] He also expressed the government’s view that digital devices are classified as “goods”.[180] He further argued that “[i]mposing further examination preconditions … could hinder the CBSA’s ability to respond to emerging threats and contraventions”.[181] Fortunately, Goodale expressed some interest in establishing external review for CBSA.[182]

Despite the government’s arguments to the contrary, the current law is inadequate. While the CBSA’s Guidelines and internal disciplinary mechanisms offer a small degree of comfort, this paper has argued that these policies fail to adequately protect section 8 privacy rights. Internal government policies are not generally seen as binding rules, especially because they can be changed at any time without public notice.

The government also relies on questionable case law surrounding their interpretation of digital devices as “goods”. The most recent appellate court decision on this question is R v Bialski.[183] There, the Saskatchewan Court of Appeal reviewed case law from lower courts across Canada on whether digital devices qualify as a “good” under section 99(1)(a) of the Customs Act. Although the lower courts generally found that digital devices were goods,[184] the Court of Appeal chose to leave that question “for another day”.[185] This decision was appealed to the Supreme Court, where leave was recently denied.[186] This effectively leaves the question unsettled, save for this handful of lower court decisions. Notably, these cases were decided before the Supreme Court released its decision in Fearon, where the Court tailored the common law doctrine of search incident to arrest to account for a very similar conflict between privacy rights and state security interests.[187]

Lastly, the government argues that setting conditions for searches could harm CBSA’s operational response. This argument is not compelling. Setting basic thresholds and reviewing officer conduct after-the-fact would not impede searches with legitimate aims. The solution I have proposed targets abuse and misconduct while empowering officers to effectively enforce Canadian laws at the border.

Part 5 — Conclusion

Digital border searches are ripe for a Charter challenge: it is a matter of when, not if. The federal government should take a proactive approach and reform the Customs Act to bring it in compliance with section 8 of the Charter. I look forward to the legislation Minister Goodale has promised to implement review mechanisms for CBSA. However, to date the government has shown a reluctance to address troubling constitutional questions with the laws that, in the government’s view, justify warrantless searches of digital devices at the border. As cloud computing becomes ever more pervasive and accessible to consumers, the government’s “suitcase” approach to border enforcement seems ever more antiquated.

Bibliography

Legislation

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R v Simmons, [1988] 2 SCR 495, 55 DLR (4th) 673

R v Terry, [1996] 2 SCR 207, 135 DLR (4th) 214.

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R v Tse, 2012 SCC 16, [2012] 1 SCR 531.

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R v Wong, [1990] 3 SCR 36, 120 NR 34.

United States v Ramsey, 431 US 606 (1977).

Secondary Material

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British Columbia Civil Liberties Association. “Nine Things You Need to Know about Bill C-59”, (22 January 2018), online: <bccla.org>.

Canada Border Services Agency. “Compliments, Comments and Complaints” (3 October 2018), online: <cbsa-asfc.gc.ca>.

———. “Examination of Digital Devices and Media at the Port of Entry – Interim Guidelines” (30 June 2015), online: <bccla.org/wp-content/uploads/2016/08/CBSA-FOI-Docs.pdf>.

———. “Misconduct Investigations and Disciplinary Measures Statistics” (28 May 2018), online: <cbsa-asfc.gc.ca>.

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Foxe, Ken. “Passengers Bring 2 or 3 Electronic Devices on Flights” (17 February 2016) Lonely Planet (blog), online: <lonelyplanet.com>.

Fric, Agathon. “Reasonableness as Proportionality: Towards a Better Constructive Interpretation of the Law on Searching Computers in Canada” (2016) 21 Appeal 59.

Goodale, Ralph, Minister of Public Safety and Emergency Preparedness. Letter to Bob Zimmer, Chair, House Standing Committee on Access to Information, Privacy and Ethics (16 April 2018), online: <ourcommons.ca/Content/Committee/421/ETHI/GovResponse/RP9763107/421_ETHI_Rpt10_GR/421_ETHI_Rpt10_GR-e.pdf>.

Gollom, Mark. “Alain Philippon Phone Password Case: Powers of Border Agents and Police Differ”, CBC News (6 March 2015), online: <cbc.ca>.

Hamilton, Graeme. “Guilty Plea Ends Case That Pitted Cellphone Privacy Rights Against Border Security Powers”, National Post (15 August 2016), online: <nationalpost.com>.

Hasan, Nader R. “A Step Forward or Just a Sidestep? Year Five of the Supreme Court of Canada in the Digital Age” (2015) 71 SCLR (2d) 439.

Hiller, Harry H. “Airports as Borderlands: American Preclearance and Transitional Spaces in Canada” (2010) 25:3–4 J Borderlands Studies 19.

House of Commons, Standing Committee on Access to Information, Privacy and Ethics. Protecting Canadians’ Privacy at the U.S. Border (December 2017) (Chair: Bob Zimmer).

Johnson, Mathew. “Privacy in the Balance: Novel Search Technologies, Reasonable Expectations, and Recalibrating Section 8” (2012) 58:3–4 Crim LQ 442.

Julian, Jack. “Quebec Resident Alain Philippon to Fight Charge for Not Giving Up Phone Password at Airport”, CBC News (4 March 2015), online: <cbc.ca>.

Magotiaux, Susan. “Out of Sync: Section 8 and Technological Advancement in Supreme Court Jurisprudence” (2015) 71 SCLR (2d) 501.

Mayeda, Graham. “Privacy in the Age of the Internet: Lawful Access Provisions and Access to ISP and OSP Subscriber Information” (2016) 53:3 Alta L Rev 709.

McGill, Jena & Ian Kerr. “Reduction to Absurdity: Reasonable Expectations of Privacy and the Need for Digital Enlightenment” in Jacques Bus et al, eds, Digital Enlightenment Yearbook 2012 (Amsterdam: IOS Press, 2012) 199.

Penney, Steven. “‘Mere Evidence’?: Why Customs Searches of Digital Devices Violate Section 8 of the Charter” (2016) 49:2 UBC L Rev 485.

———. “The Digitization of Section 8 of the Charter: Reform or Revolution?” (2014) 67 SCLR (2d) 505.

Public Safety Canada. “Preclearance: Helping Keep the Canada–United States Border Secure and Efficient, While Protecting Canadians’ Charter Rights” (22 February 2017), online: <publicsafety.gc.ca>

Senate, Minutes of the Proceedings and Evidence of the Committee on National Security and Defence, 42nd Parl, 1st Sess, No 4 (30 May 2016).

Soupcoff, Marni. “Get the State Out of My Smartphone”, Full Comment, National Post (9 March 2015), online: <nationalpost.com>.

Statistics Canada. “Table 427-0001: Number of International Travellers Entering or Returning to Canada, by Type of Transport, Monthly (Persons)”, online: <statcan.gc.ca>.

Stewart, Hamish. “Normative Foundations for Reasonable Expectations of Privacy” (2011) 54 SCLR (2d) 335.

United States Customs and Border Protection. “Directive No. 3340-049A: Border Search of Electronic Devices” (4 January 2018), online: <cbp.gov/sites/default/files/assets/documents/2018-Jan/CBP-Directive-3340-049A-Border-Search-of-Electronic-Media-Compliant.pdf>.

Vonn, Michael. “What Happens If You Don’t Provide Your Cellphone Password to Border Agents?” (25 August 2016) British Columbia Civil Liberties Association (blog), online: <bccla.org>.

Endnotes

[*]The author wishes to thank Professor Kyle Kirkup for his thoughtful suggestions for revision on earlier drafts of this essay. The author also acknowledges the generous support and advice of Marta Porodko, Patrick Nelson, Ida Mahmoudi, Selena Lucien, Erin Stuart, Kaitlin Brennan, Joseph Lo Presti, and Olivia Varsaneux.

[1] See Jack Julian, “Quebec Resident Alain Philippon to Fight Charge for Not Giving Up Phone Password at Airport”, CBC News (4 March 2015), online: <cbc.ca>.

[2] Ibid; Michael Vonn, “What Happens If You Don’t Provide Your Cellphone Password to Border Agents?” (25 August 2016) British Columbia Civil Liberties Association (blog), online: <bccla.org>. See also Customs Act, RSC 1985, c 1 (2nd Supp), s 153.1(b) (“[n]o person shall…hinder or prevent an officer” from performing their duties).

[3] See Graeme Hamilton, “Guilty Plea Ends Case That Pitted Cellphone Privacy Rights Against Border Security Powers”, National Post (15 August 2016), online: <nationalpost.com>.

[4] Ibid.

[5] Ibid; Marni Soupcoff, “Get the State Out of My Smartphone”, Full Comment, National Post (9 March 2015), online: <nationalpost.com>; Mark Gollom, “Alain Philippon Phone Password Case: Powers of Border Agents and Police Differ”, CBC News (6 March 2015), online: <cbc.ca>.

[6] See R v Simmons, [1988] 2 SCR 495 at 528, 55 DLR (4th) 673 [Simmons] (“[p]eople do not expect to be able to cross international borders free from scrutiny” at 528). See also R v Jones (2006), 81 OR (3d) 481 at para 30, 211 CCC (3d) 4 (CA) [Jones] (“[n]o one entering Canada reasonably expects to be left alone by the state” at para 30).

[7] The Supreme Court of Canada has recognized that computers and cellphones carry deeply personal information. See R v Fearon, 2014 SCC 77 at paras 51, 105, [2014] 3 SCR 621 [Fearon] (majority and dissent agreeing on depth of privacy interests in digital devices). See also R v Vu, 2013 SCC 60 at paras 40–45, [2013] 3 SCR 657.

[8] See Canadian Charter of Rights and Freedoms, s 8, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

[9] While United States (US) Border Patrol agents also search digital devices, these searches exceed the scope of this paper. For one, the Charter does not apply to American agents acting on US soil. See Charter, supra note 8, s 32(1); R v Terry, [1996] 2 SCR 207 at paras 13–20, 135 DLR (4th) 214. The US preclearance facilities in Canada’s major airports represent a notable exception that merits further analysis, especially after preclearance reforms enacted in 2017. See Preclearance Act, 2016, SC 2017, c 27. See also Public Safety Canada, “Preclearance: Helping Keep the Canada–United States Border Secure and Efficient, While Protecting Canadians’ Charter Rights” (22 February 2017), online: <publicsafety.gc.ca>; Harry H Hiller, “Airports as Borderlands: American Preclearance and Transitional Spaces in Canada” (2010) 25:3–4 J Borderlands Studies 19.

[10] See Statistics Canada, “Table 24-10-0041-01: Number of International Travellers Entering or Returning to Canada, by Type of Transport, Monthly (Persons)”, online: <www150.statcan.gc.ca/t1/tbl1/en/tv.action?pid=2410004101>.

[11] See Ken Foxe, “Passengers Bring 2 or 3 Electronic Devices on Flights” (17 February 2016) Lonely Planet (blog), online: <lonelyplanet.com>.

[12] Charter, supra note 8, s 8.

[13] See R v Edwards, [1996] 1 SCR 128 at para 33, 132 DLR (4th) 31 [Edwards].

[14] Ibid at para 45. See also Steven Penney, “The Digitization of Section 8 of the Charter: Reform or Revolution?” (2014) 67 SCLR (2d) 505 at 507 [Penney, “Reform or Revolution?”].

[15] See Hunter v Southam Inc, [1984] 2 SCR 145 at 161, 11 DLR (4th) 641 [Southam]; R v Collins, [1987] 1 SCR 265 at 277–278, 38 DLR (4th) 508 [Collins].

[16] Supra note 15.

[17] R v Caslake, [1998] 1 SCR 51 at para 10, 155 DLR (4th) 19. See also R v Nolet, 2010 SCC 24 at para 21, [2010] 1 SCR 851, citing Collins, supra note 15 at 278.

[18] Penney, “Reform or Revolution?”, supra note 14 at 508.

[19] See Department of Justice, “Section 8 – Search and Seizure” (2 January 2018) Charterpedia, online: <justice.gc.ca>, citing Canada (Attorney General) v Chambre des notaires du Québec, 2016 SCC 20 at para 89, [2016] 1 SCR 336 (once a section 8 limit fails the right’s internal “reasonableness” test, it becomes “difficult to conceive” a section 1 justification). See also Lavallee, Rackel & Heintz v Canada (Attorney General); White, Ottenheimer & Baker v Canada (Attorney General); R v Fink, 2002 SCC 61 at para 46, [2002] 3 SCR 209.

[20] Being Schedule B to the Canada Act 1982 (UK), 1982, c 11. See R v Ferguson, 2008 SCC 6 at para 58, [2008] 1 SCR 96 [Ferguson].

[21] Ferguson, supra note 20 at para 61 [emphasis in original].

[22] 2017 SCC 59, [2017] 2 SCR 608 [Marakah].

[23] 2012 SCC 16, [2012] 1 SCR 531 [Tse]. See also R v Grant, [1993] 3 SCR 223 at 243–245, 84 CCC (3d) 173 [Grant] (Sopinka J applying section 52(1) to read down a provision granting warrantless search powers, requiring a warrant save for exigent circumstances).

[24] RSC 1985, c C-46, s 184.4 (since amended).

[25] R v Tessling, 2004 SCC 67 at para 43, [2004] 3 SCR 432 [Tessling].

[26] Ibid at paras 43–62. See also Edwards, supra note 13 at para 45.

[27] See Hamish Stewart, “Normative Foundations for Reasonable Expectations of Privacy” (2011) 54 SCLR (2d) 335 at 336; Jena McGill & Ian Kerr, “Reduction to Absurdity: Reasonable Expectations of Privacy and the Need for Digital Enlightenment” in Jacques Bus et al, eds, Digital Enlightenment Yearbook 2012 (Amsterdam: IOS Press, 2012) 199 at 206–207, 210–211; Mathew Johnson, “Privacy in the Balance: Novel Search Technologies, Reasonable Expectations, and Recalibrating Section 8” (2012) 58:3–4 Crim LQ 442 at 474; Agathon Fric, “Reasonableness as Proportionality: Towards a Better Constructive Interpretation of the Law on Searching Computers in Canada” (2016) 21 Appeal 59 at 67, 70; Graham Mayeda, “Privacy in the Age of the Internet: Lawful Access Provisions and Access to ISP and OSP Subscriber Information” (2016) 53:3 Alta L Rev 709 at 712–713, 733.

[28] Tessling, supra note 25 at para 42, cited in R v Jones, 2017 SCC 60 at para 20, [2017] 2 SCR 696 [Jones].

[29] Stewart, supra note 27 at 336.

[30] Under the risk approach, the term “others” applies whether or not the person is a state agent. See ibid.

[31] Under the risk approach, the term “access” encompasses both lawful and unlawful access. See ibid.

[32] Edwards, supra note 13 at para 49.

[33] Ibid at paras 49–50.

[34] See Stewart, supra note 27 at 339.

[35] Supra note 22.

[36] Ibid at para 162.

[37] Ibid at para 40 [emphasis added].

[38] 2018 SCC 56, 427 DLR (4th) 579 [Reeves].

[39] Ibid at para 16.

[40] See Stewart, supra note 27 at 336.

[41] [1990] 1 SCR 30, 65 DLR (4th) 240 [Duarte cited to SCR].

[42] Stewart, supra note 27 at 340.

[43] Duarte, supra note 41 at 51.

[44] Ibid at 52, citing Commonwealth v Thorpe, 424 NE (2d) 250 at 258 (Mass 1981).

[45] Duarte, supra note 41 at 57.

[46] Reeves, supra note 38 at para 50. See also R v Wong, [1990] 3 SCR 36, 120 NR 34; R v Cole, 2012 SCC 53, [2012] 3 SCR 34.

[47] Stewart, supra note 27 at 336, 345.

[48] Ibid at 342.

[49] Ibid at 343, citing Lisa M Austin, “Privacy and the Question of Technology” (2003) 22 Law & Phil 119 at 147.

[50] Ibid at 343–345 (“freedom of conscience, religion, thought, belief and opinion” at 345).

[51] See Section A below.

[52] See Section B below.

[53] Supra note 6.

[54] RSC 1970, c C‑40, ss 143, 144. For the current version of this Act, see Customs Act, supra note 2.

[55] US Const amend IV (like section 8, amend IV protects against “unreasonable searches and seizures”).

[56] 431 US 606 (1977).

[57] Ibid at 616–617, 619. See also Simmons, supra note 6 at 515–516.

[58] See Southam, supra note 15 at 160ff.

[59] Simmons, supra note 6 at 528.

[60] Ibid.

[61] Ibid at 517.

[62] Ibid.

[63] Ibid.

[64] Ibid at 529.

[65] [1999] 1 SCR 652, 171 DLR (4th) 1 [Monney cited to SCR].

[66] Ibid at para 43.

[67] Ibid at para 38.

[68] Ibid at para 35.

[69] [1996] 3 SCR 312, 139 DLR (4th) 223 [Jacques cited to SCR].

[70] Ibid at para 18, citing Simmons, supra note 6 at 528.

[71] Supra note 15 at 278.

[72] Supra note 2, s 99(1)(f).

[73] Jacques, supra note 69 at para 31.

[74] Sopinka J concurred, writing separate reasons on the proper disposition of the appeal: in his view, the majority should have ordered a new trial instead of entering a conviction. See ibid at para 1.

[75] Jacques, supra note 69 at para 67.

[76] Ibid at paras 20, 61.

[77] See Robert J Currie, “Electronic Devices at the Border: The Next Frontier of Canadian Search and Seizure Law?” (2016) 14:2 CJLT 289 at 291.

[78] See Penney, “Reform or Revolution?”, supra note 14 at 505–506.

[79] Ibid at 508–516; Currie, supra note 77 at 291–297; Nader R Hasan, “A Step Forward or Just a Sidestep? Year Five of the Supreme Court of Canada in the Digital Age” (2015) 71 SCLR (2d) 439.

[80] Penney, “Reform or Revolution?”, supra note 14 at 516.

[81] 2010 SCC 8, [2010] 1 SCR 253 [Morelli].

[82] Ibid at para 2.

[83] See R v Vu, supra note 7 at para 45. See also Hasan, supra note 79 at 447–449.

[84] R v Vu, supra note 7 at para 41, citing R v Mohamad (2004), 69 OR (3d) 481 at para 43, 182 CCC (3d) 97 (CA).

[85] See Currie, supra note 77 at 291. See also Morelli, supra note 81 at para 105; Hasan, supra note 79 at 448–449.

[86] R v Vu, supra note 7 at para 42.

[87] Ibid. See also Hasan, supra note 79 at 448.

[88] See R v Vu, supra note 7 at para 43. See also Hasan, supra note 79 at 448–449.

[89] See R v Vu, supra note 7 at para 44.

[90] Ibid at paras 45–52.

[91] Supra note 7.

[92] Ibid at paras 51–52, citing R v Vu, supra note 7 at paras 38, 40–45.

[93] Fearon, supra note 7 at paras 3, 15, 26.

[94] Ibid at paras 74–75.

[95] Ibid at paras 76–80.

[96] Ibid at paras 80–81.

[97] Ibid at para 82.

[98] LeBel and Abella JJ supported the dissenting reasons delivered by Karakatsanis J.

[99] Ibid at paras 135–138.

[100] See Hasan, supra note 79 at 453–458; Fric, supra note 27 at 61.

[101] Hasan, supra note 79 at 453.

[102] See e.g. Marakah, supra note 22; Jones, supra note 28.

[103] Supra note 25.

[104] Ibid at para 55 [emphasis in original].

[105] See Susan Magotiaux, “Out of Sync: Section 8 and Technological Advancement in Supreme Court Jurisprudence” (2015) 71 SCLR (2d) 501 at 508–509.

[106] See Fearon, supra note 7 at para 53.

[107] Ibid.

[108] See Magotiaux, supra note 105 at 509.

[109] See supra note 11 and accompanying text.

[110] RSC 1985, c A-1. See Vonn, supra note 2.

[111] Canada Border Services Agency, “Examination of Digital Devices and Media at the Port of Entry – Interim Guidelines” (30 June 2015), online: <bccla.org/wp-content/uploads/2016/08/CBSA-FOI-Docs.pdf> at 3–6 [CBSA Guidelines].

[112] Ibid at 3.

[113] Supra note 2.

[114] SC 2001, c 27 [IRPA].

[115] Customs Act, supra note 2, s 2.

[116] Ibid, s 99(1)(a).

[117] CBSA Guidelines, supra note 111 at 3.

[118] IRPA, supra note 114, s 139(1) [emphasis added].

[119] CBSA Guidelines, supra note 111 at 3–4 [emphasis in original].

[120] See supra note 23 and accompanying text.

[121] See e.g. Tse, supra note 23; Grant, supra note 23.

[122] See Southam, supra note 15 at 161.

[123] See Currie, supra note 77 at 302. See also R v Saikaley, 2012 ONSC 6794, 2012 CarswellOnt 17826; R v Mozo (2010), 316 Nfld & PEIR 304, 982 APR 304 (NL Prov Ct) [Mozo].

[124] See e.g. Morelli, supra note 81 at para 2; R v Vu, supra note 7 at para 45.

[125] R v Nagle, 2012 BCCA 373, 103 WCB (2d) 604, leave to appeal to SCC refused, 35088 (18 March 2013).

[126] See Collins, supra note 15 at 278.

[127] See Currie, supra note 77 at 305–306.

[128] R v Leask, 2008 ONCJ 25 at para 16, 76 WCB (2d) 385.

[129] See R v Vu, supra note 7 at paras 40–45. See also Morelli, supra note 81 at para 2.

[130] See Fearon, supra note 7 at para 51.

[131] See R v Vu, supra note 7 at paras 46–49.

[132] See Customs Act, supra note 2, s 2. See also Steven Penney, “‘Mere Evidence’?: Why Customs Searches of Digital Devices Violate Section 8 of the Charter” (2016) 49:2 UBC L Rev 485 at 504 [Penney, “Mere Evidence?”].

[133] See Currie, supra note 77 at 309.

[134] See Goodwin v British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46 at para 55, [2015] 3 SCR 250 [Goodwin], citing Southam, supra note 15 at 159–160.

[135] See Goodwin, supra note 134 at para 57.

[136] Ibid at paras 57–75.

[137] Ibid at paras 66–68. See also R v Chehil, 2013 SCC 49 at para 48, [2013] 3 SCR 220.

[138] See CBSA Guidelines, supra note 111 at 5.

[139] See Goodwin, supra note 134 at paras 69–75; Tse, supra note 23 at paras 83–84.

[140] See Goodwin, supra note 134 at paras 71.

[141] Supra note 7 at paras 46–49.

[142] See Tse, supra note 23 at para 84.

[143] See Fearon, supra note 7 at para 82.

[144] See CBSA Guidelines, supra note 111 at 4–5.

[145] Tse, supra note 23 at paras 85.

[146] Penney, “Mere Evidence?”, supra note 132 at 504–505.

[147] Ibid at 505. While the CBSA Guidelines, supra note 111 attempt to set a threshold (at 3), this attempt suffers from the same flaw as the notetaking instructions (supra note 136 and accompanying text): it is policy, not law.

[148] See Morelli, supra note 81 at para 3; R v Vu, supra note 7 at paras 38, 40–45; Fearon, supra note 7 at para 51.

[149] See Penney, “Mere Evidence?”, supra note 132 at 508.

[150] Ibid at 510, note 123.

[151] Ibid at 510.

[152] Ibid at 511 [footnotes omitted].

[153] R v Vu, supra note 7 at paras 22.

[154] Currie, supra note 77 at 291.

[155] House of Commons, Standing Committee on Access to Information, Privacy and Ethics, Protecting Canadians’ Privacy at the U.S. Border (December 2017) (Chair: Bob Zimmer) [ETHI Report]. Note that, despite the title, Parts 1 and 2 of the Report recommended reforming CBSA’s approach to digital device searches.

[156] Ibid at 8, note 20 and accompanying text (Privacy Commissioner). This view was supported by representatives from the Canadian Bar Association (ibid at 8), the British Columbia Civil Liberties Association (ibid at 9), the Canadian Civil Liberties Association (ibid at 9),

[157] See Penney, “Mere Evidence?”, supra note 132; Currie, supra note 77; Johnson, supra note 27; Fric, supra note 27; Mayeda, supra note 27.

[158] See Currie, supra note 77.

[159] See Penney, “Mere Evidence?”, supra note 132.

[160] Mayeda, supra note 27.

[161] Southam, supra note 15 at 160 [emphasis added].

[162] See Statistics Canada, supra note 10.

[163] See Collins, supra note 15 at 278.

[164] See ETHI Report, supra note 155 at 11.

[165] See Monney, supra note 65.

[166] See ETHI Report, supra note 155 at 11.

[167] See Tse, supra note 23 at para 84.

[168] See Canada Border Services Agency, “Compliments, Comments and Complaints”, (3 October 2018), online: <cbsa-asfc.gc.ca> [CBSA].

[169] Stephen Davis, “Critics Call for ‘Robust’ Oversight of CBSA Following CBC Reports on Staff Misconduct”, CBC News (15 February 2019), online: <cbc.ca>.

[170] Ibid.

[171] Bill C-59, An Act respecting national security matters, 1st Sess, 42nd Parl, 2017 (second reading in the Senate 11 December 2018).

[172] Senate, Minutes of the Proceedings and Evidence of the Committee on National Security and Defence, 42nd Parl, 1st Sess, No 4 (30 May 2016).

[173] Bill S-205, An Act to amend the Canada Border Services Agency Act (Inspector General of the Canada Border Services Agency) and to make consequential amendments to other Acts, 42nd Parl, 1st Sess, 2015 (third reading 25 October 2016).

[174] See Amanda Connolly, “Goodale Won’t Support Senate CBSA Inspector General Bill”, iPolitics (30 May 2016), online: <ipolitics.ca>.

[175] See Bill C-59, supra note 171.

[176] British Columbia Civil Liberties Association, “Nine Things You Need to Know about Bill C-59”, (22 January 2018), online: <bccla.org> (“[t]here’s review of the CBSA’s national security activities but most of the CBSA’s activities are still completely without proper review and accountability”).

[177] Davis, supra note 169.

[178] Letter from Ralph Goodale, Minister of Public Safety and Emergency Preparedness, to Bob Zimmer, Chair, House Standing Committee on Access to Information, Privacy and Ethics (16 April 2018), online: <ourcommons.ca/Content/Committee/421/ETHI/GovResponse/RP9763107/421_ETHI_Rpt10_GR/421_ETHI_Rpt10_GR-e.pdf>.

[179] Ibid at 2.

[180] Ibid.

[181] Ibid.

[182] Ibid at 3.

[183] 2018 SKCA 71, 364 CCC (3d) 485, leave to appeal to SCC refused, 38370 (21 February 2019) [Bialski].

[184] See R v Bares, 2008 CanLII 9367, 77 WCB 83 (Ont Sup Ct); R v Moroz, 2012 ONSC 5642, 2012 CarswellOnt 12614; R v Buss, 2014 BCPC 16, 112 WCB (2d) 28.

[185] Ibid at para 109.

[186] See Bialski, supra note 183.

[187] See Fearon, supra note 7.