The government wants border agents to be able to search your smartphones and laptops without any suspicion that you’ve done anything wrong. I think that’s a problem. There are a lot of problematic bills currently pending before parliament but one in particular is not getting enough attention. It’s Bill S-7, called An Act to amend the Customs Act and the Preclearance Act, 2016. Today I’m going to talk about the bill, digital device searches and what I think about it all.
I don’t know about you, but my smartphone and my laptop contain a vast amount of personal information about me. My phone is a portal to every photo of my kids, messages to my wife, my banking and other information. It contains client information. And Canada Border Services Agency wants to be able to search it without any suspicion that I’d committed a crime or violated any law.
Bill S-7, which was introduced in the Senate on March 31, 2022, is intended to give the CBSA the power to go browsing through your smartphone and mine on what amounts to a whim. It also extends the same powers to US Homeland Security agents who carry out pre-departure pre-clearance at Canadian airports.
If you’ve ever watched the TV show “Border Security Canada”, you would have seen how routine these sorts of searches are. Many of the searches do produce evidence of illegal activity, like smuggling, immigration violations and even importation of child sexual abuse materials. The question is not whether these searches should ever be permissible, but under what circumstances. The government wants it to be with a very low threshold, while I’m confident that the Charter requires more than that.
We all know there’s a reduced expectation of privacy at the border, where you can be pulled over to secondary screening and have your stuff searched. The Customs Act specifically gives CBSA the power to search goods. But a big problem has arisen because the CBSA thinks the ones and zeros in your phone are goods they can search.
Smartphones were unheard of when the search powers of the Customs Act were last drafted and the CBSA thinks it gives them carte blanche to search your devices. Now, in the meantime, the courts have rightly said that’s going too far. So the government is looking to amend the Customs Act to authorize device searches if the CBSA officer has a “reasonable general concern” about a contravention of the law.
One big issue is what the hell does “reasonable general concern” mean? In law, we’re used to language like “reasonable grounds to believe a crime has been committed” or even “reasonable grounds to suspect”, but reasonable general concern is not a standard for any sort of search in Canadian law. Your guess is as good as mine, but it seems pretty close to whether the officer's “spidey sense is tingling”.
S-7 is trying to fix a problem and I think the way they’re doing it will ultimately be found to be unconstitutional. To see that, we have to look at the competing interests at play in this context and look at what the courts have recently said about device searches at the border.
It is clear that you have a reduced expectation of privacy at the border, but it is not completely eliminated. And the Charter is not suspended at the border. For example, border officers can’t detain and strip search you just because they want to. These searches legally cannot be performed unless an officer has reasonable grounds to suspect some legal contravention, notably the concealment of goods. And they can’t strip search you unless there is a reason to do so, like looking for contraband smuggled on your person.
Meanwhile, there is a growing body of case law that says individuals have a very high expectation of privacy in our digital devices. For example, in a case called Fearon from 2014, the Supreme Court modified the common law rule related to search incident to arrest for smartphones, specifically due to the immense privacy implications in searching such devices. Upon arrest, they can routinely search you, your clothes and your belongings, but they can only search your smartphone if certain criteria are met.
The Supreme Court has clearly established that the greater the intrusion on privacy, the greater the constitutional protections and a greater justification for the search is required. And while there may be a diminished expectation of privacy at the border, this expectation is not completely extinguished.
At the same time, there has been a developing body of case law saying that suspicionless searches of personal electronic devices at the border violate the Charter.
The leading Supreme Court of Canada case on privacy at the border is from 1988 called Simmons. In that case, the Court recognized that the degree of personal privacy reasonably expected by individuals at the border is lower than in most other situations. Three distinct types of border searches, with an increasing degree of privacy expectation, were identified: (1) routine questioning which every traveller undergoes at a port of entry, sometimes accompanied by a search of baggage and perhaps a pat or frisk of outer clothing; (2) a strip or skin search conducted in a private room after a secondary examination; and (3) a body cavity search. The first category was viewed as the least intrusive type of routine search, not raising any constitutional issues or engaging the rights protected by the Charter. Essentially, this category can be done without any suspicion of wrongdoing.
So since then, customs agents have seen a search of a phone to be the same as the search of your luggage, which they conclude they can do without any suspicion of wrongdoing.
The Alberta Court of Appeal in 2020, in a case called Canfield, said that customs’ treatment of personal electronic devices was wrong, and it does not fit into that first category. The court noted:
“There have been significant developments, both in the technology of personal electronic devices and in the law relating to searches of such devices, since Simmons was decided in 1988. A series of cases from the Supreme Court of Canada over the past decade have recognized that individuals have a reasonable expectation of privacy in the contents of their personal electronic devices, at least in the domestic context. While reasonable expectations of privacy may be lower at the border, the evolving matrix of legislative and social facts and developments in the law regarding privacy in personal electronic devices have not yet been thoroughly considered in the border context.”
The court then said:
“We have also concluded that s 99(1)(a) of the Customs Act is unconstitutional to the extent that it imposes no limits on the searches of such devices at the border, and is not saved by s 1 of the Charter. We accordingly declare that the definition of “goods” in s 2 of the Customs Act is of no force or effect insofar as the definition includes the contents of personal electronic devices for the purpose of s 99(1)(a).”
The Court in Canfield essentially said there has to be a minimal threshold in order to justify a search of a digital device, but they would leave it to parliament to determine what that threshold is.
But the next year, the same Alberta Court of Appeal considered an appeal in a case called Al Askari. In that case, the question was related to a search of a personal electronic device justified under immigration legislation. The Court found that like in Canfield, there has to be a threshold and it can’t be suspicionless.
The court commented favourably on the very reasoned approach put forward by my friend and Schulich School of Law colleague Professor Robert Currie.
“Prof Currie suggests that the critical issue is measuring the reasonably reduced expectation of privacy at the border and the extent of permissible state intrusion into it. In his view, this is best achieved through the established test in R v Collins, [1987] 1 SCR 265, 308. Was the search authorized by law? Is the law itself reasonable? Is the search carried out in a reasonable manner?When assessing whether the law itself is reasonable, Prof Currie proposes a standard of reasonable suspicion because it is tailor-made to the border context. It must amount to more than a generalized suspicion and be based on objectively reasonable facts within the totality of the circumstances: 311. On the reasonableness of the search, he advocates for an inquiry into whether the search was limited in scope and duration.”
The Court in both Canfield and Al Askari noted that not all searches are the same, and there are degrees of intrusion into personal electronic devices. Asking to look at a receipt for imported goods on a phone is very different from just perusing the full device looking for anything at all.
So fast forward to March 2022. The Alberta Court of Appeal said it’s up to Parliament to set the threshold and for the courts to determine whether it is compliant with the Charter. So Parliament is proposing a threshold of “reasonable general concern” to search documents on a personal digital device. This is setting things up for years of further litigation.
The creation of a ‘’reasonable general concern’ standard is not only new, and the bill doesn’t give it any sort of definition, it is inconsistent with other legislation governing border searches. It also does not impose any obligation that the type of search carried out must be appropriate to what is “of general concern” or set any limits on what can be searched on the device when the “reasonable general concern” (whatever that means) is met.
If you look at the case of Fearon, which addressed device searches incident to arrest, the court imposed a bunch of conditions and limits in order to take account of the nature of device searches. Importantly, the extent of the permitted search has to be appropriate to what they legitimately have an interest in. The court said:
“In practice, this will mean that, generally, even when a cell phone search is permitted because it is truly incidental to the arrest, only recently sent or drafted emails, texts, photos and the call log may be examined as in most cases only those sorts of items will have the necessary link to the purposes for which prompt examination of the device is permitted. But these are not rules, and other searches may in some circumstances be justified. The test is whether the nature and extent of the search are tailored to the purpose for which the search may lawfully be conducted. To paraphrase Caslake, the police must be able to explain, within the permitted purposes, what they searched and why”
In the border context, if they are looking for whether someone appearing on a tourism visa actually has a job waiting for them, you don’t go looking for evidence of that in their camera roll. You scan the subject lines of emails, and not go prowling through all the mail in the inbox.
Fearon also requires police to carefully document their searches, the rationale, what they looked at and why. There is no such requirement in Bill S-7.
Given years of growing jurisprudence confirming that personal electronic devices contain inherently private information, and the tendency of the courts to impose the creation of this lower threshold is unreasonable, inconsistent with other search standards, and anticipated to run afoul of the Charter.
I think after Canfiled and Al Askari, government lawyers and policy makers huddled and and tried to invent a threshold that could plausibly be called a threshold but was miles below reasonable suspicion. And this is what they came up with. You’ll note that they ignored all the really smart and sensible things that Professor Currie proposed.
What is also very notable is that the government ignored the recommendations made by the House of Commons Standing Committee on Access to Information, Privacy and Ethics in 2017 after it had carried out an extensive study and consultation on the issue of privacy at borders and airports. (I testified at those hearings on behalf of the Canadian Bar Association.) It recommended that the threshold of “reasonable grounds to suspect” should be the threshold.
The threshold is so low that it’s hardly a threshold at all. It’s a license for the CBSA to continue their practices of routinely searching electronic devices, and will continue the legal challenges. I just really wish the legislators would listen to the experts and the courts.
Five years ago, on January 2, 2004, a new age of privacy was creeping across Canada and this blog was born. The day before, at the stroke of midnight, the Personal Information Protection and Electronic Documents Act (Canada) had come fully into force. The Alberta and British Columbia Personal Information Protection Acts also became effective on the first day of 2004.