Guest Author: Professor Steven Penney | University of Alberta, Faculty of Law
While the border is not a Charter-free zone, the courts have largely deferred to the state’s sovereignty and security interests in applying section 8 of the Charter to customs and immigration searches. The template was set in R v Simmons,[1] where the Supreme Court rejected a challenge to legislation permitting warrantless and (in many cases) suspicionless searches at border crossings. Writing for the majority, Chief Justice Dickson held that the usual prerequisites of reasonableness under section 8 (warrants and probable grounds) did not apply to border searches. Sovereign states’ right to “control both who and what enters their boundaries” justified a more flexible approach than in the criminal realm.[2] “National self-protection,” including concerns about illegal drug importation and tariff enforcement, demanded a diminished expectation of privacy for people and goods entering Canada.[3] The Court accordingly upheld powers permitting routine, warrantless frisk and luggage searches without suspicion as well as strip searches on reasonable suspicion.[4] In later decisions, the Court also permitted warrantless, reasonable suspicion-based vehicle searches[5] and “bedpan vigils” at the border.[6]
Most courts have applied the same logic to searches of digital devices, requiring neither warrants nor objective grounds for suspicion.[7] But in R v Canfield, the Alberta Court of Appeal struck down legislation permitting digital searches without a warrant or any degree of suspicion.[8] The court hinted to Parliament, however, that such searches might be found reasonable under a standard lower than reasonable suspicion[9] and that searches for customs and immigration-related documents (as opposed to contraband) might be reasonable without any suspicion whatsoever.[10]
Suspicionless and warrantless searches of persons and physical goods for border security reasons are defensible. Though they are at least somewhat intrusive, affect many people, and may be disproportionately used against disfavoured minorities, the threat of random inspection is arguably necessary to adequately control the flow of persons and goods into Canada.
But the same is not true of digital devices. Digital searches are markedly more intrusive than physical ones and present a dramatically lower risk to border security. They give the state vastly greater access to intimate personal information than frisk or luggage searches. And the internet has eviscerated border control agents’ capacity to prevent digital contraband (chiefly child pornography) from entering Canada. The vast proportion of child pornography available in Canada did not pass through a physical border.
With minor exceptions,[11] there is simply no border control justification for suspicionless (or even warrantless) digital device searches. Indeed, there is evidence that police often conspire with customs officials to use digital border searches to evade the basic Charter protections attaching to ordinary criminal investigations.[12] Despite all of this, most courts have simply invoked Simmons in permitting border officials to conduct suspicionless searches of digital devices.[13]
Even the court in Canfield (which held that reasonableness required some degree of individualized suspicion for at least some digital border searches) greatly exaggerated the threat posed by digital contraband, especially child pornography. It is true that child pornography, and the underlying exploitation that it incentivizes and perpetuates, is a serious social problem. It is also true that it is often found on digital devices.
But the court conflated the state’s general interest in combatting child pornography with the specific border control rationale for permitting suspicionless searches. Allowing police to search digital devices without a warrant or individualized suspicion would undoubtedly help mitigate the harms of child pornography. But such a power is beyond the constitutional pale, and rightly so. Giving border control agents a power to do the same thing, for the same reasons, is unjustified.
Put simply, digital border searches do little to advance the state’s border security interests, yet they pose a considerable threat to privacy, especially to members of marginalized groups. In practice, such searches serve only general criminal law enforcement purposes. Border agents should accordingly have no greater power to search for digital contraband than police.
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For further reading, see Steven Penney, “‘Mere Evidence’? Why Customs Searches of Digital Devices Violate Section 8 of the Charter” (2016) 49:1 UBC L Rev at 505; Robert J Currie, “Electronic Devices at the Border: The Next Frontier of Canadian Search and Seizure Law?” (2016) 14 Can J Law & Tech 289
[1] R v Simmons, [1988] 2 SCR 495.
[2] Ibid at 523, 572-59.
[3] Ibid at 528-29.
[4] Simmons, supra.
[5] R v Jacques, [1996] 3 SCR 312.
[6] R v Monney, [1999] 1 SCR 652 (detention of traveler suspected of ingesting contraband to preserve excreted material).
[7] See e.g., R v Bialski, 2018 SKCA 71 at paras 110-112, leave to appeal dismissed, [2018] SCCA No 442; R v Buss, 2014 BCPC 16 at paras 22-32; R v Moroz, 2012 ONSC 5642 at paras 20-21; R v Whittaker, 2010 NBPC 32 at paras 8-13.
[8] 2020 ABCA 383 at para 75, leave application dismissed, 2021 CanLII 18037 (SCC).
[9] Ibid (“in our view the threshold for the search of electronic devices may be something less than the reasonable grounds to suspect required for a strip search under the Customs Act”).
[10] Ibid at para 79.
[11] It might be reasonable, for example, to require travelers to produce documentation (including that found on digital devices) to justify either their eligibility to enter Canada or entitlement to import goods. Such an obligation is far less intrusive, however, than giving border officials a power to search digital devices themselves.
[12] See e.g., R v Moroz, 2012 ONSC 5642.
[13] See e.g., R v Bialski, 2018 SKCA 71 at paras 100-09 and decisions cited therein.
