What’s In Your Apple Wallet? Border Searches of Electronic Devices
6 May 2019
By Leah West and Craig Forcese
CBC reported on 5 May 2019 that the Canada Border Services Agency had seized the phone and computer of a Canadian lawyer returning to Canada, after he refused to provide access passwords (urging the devices contained sensitive solicitor-client materials).
This is the latest in a series of cases in which the search and seizure powers of the CBSA at the border have provoked controversy. One of these, the now infamous case involving Huawei CFO Meng Wanzhou, has resulted in civil litigation before the BC Supreme Court. As we wrote in a prior post, the legal issues implicated in these searches are unsettled – or have become unsettled, given that the Supreme Court of Canada’s leading cases on this matter stem from the period during which the Commodore 64 was state-of-the-art.
In this post, we unpack what we see to be the most important legal questions. (The separate professionalism issue of client confidences and lawyers crossing borders is an issue we do not address, but it is one to which law regulators have been turning their minds.)
The Charter and Statutory Doubts
These border search cases turn on whether the government’s sweeping interpretation of its powers at the border remains true in an evolving Charter of Rights and Freedoms environment.
First point: despite a handful of exceptions that are irrelevant here, Charter rights attach to all people in Canada, regardless of their nationality or immigration status.
Second point: the government takes the view that Charter rights are more attenuated at the border. And to this point, the courts have concurred.
Upon arrival in Canada, s. 11(1) of the Customs Act stipulates that everyone must present themselves to an officer without delay and answer any questions asked by the officer in the performance of his or her duties under any act of parliament truthfully. Additionally, s.99 of the Customs Act gives authorities (in practice, CBSA) substantial search authority. The government asserts that this authority applies to smartphones in the same way it applies to suitcases. CBSA guidelines urge s. 99:
provides CBSA officers with the legislative authority to examine goods, including digital services and media, for customs purposes only. Although there is no defined threshold for grounds to examine such devices, CBSA’s current policy is that such examinations should not be conducted as a matter of routine; they may only be conducted if there is a multiplicity of indicators that evidence of contraventions may be found on the digital device or media.
Goods may also be examined under s. 99 of the Customs Act if an officer has reasonable grounds to suspect that, in relation to those goods, any act of Parliament enforced by them may have been contravened.
The Supreme Court has interpreted these provisions broadly on the basis that persons have a diminished expectation of privacy at the border. In R v Simmons, the Supreme Court considered the constitutionality of a strip search conducted by a customs officer at an airport who had reasons to suspect that the accused was secreting narcotics. It held:
People do not expect to be able to cross international borders free from scrutiny. It is commonly accepted that sovereign states have the right to control both who and what enters their boundaries. For the general welfare of the nation the state is expected to perform this role. Without the ability to establish that all persons who seek to cross its borders and their goods are legally entitled to enter the country, the state would be precluded from performing this crucially important function. Consequently, travellers seeking to cross national boundaries fully expect to be subject to a screening process.
The Supreme Court went on to find that “routine questioning,” luggage searches, and frisk and pat down searches conducted by customs officers without any individualized suspicion were not unreasonable searches under s.8 of the Charter. Furthermore, searches of the person that “are not routine” but carried out based on the officer’s reasonable suspicion that a person has secreted contraband on their body were also found to be reasonable under s.8 because they were carried out in private and subject to review at the individual's request.
Lower courts have also determined that electronic devices and smartphones qualify as “goods” under the Customs Act, and searches of such devices are permitted under s. 99(1). See, e.g., R v Moroz; R. v. Canfield.
Privacy experts disagree. It is incongruous to treat smartphones, computers and other data devices as “goods”, no different than a suitcase under the Customs Act. Testifying before a parliamentary committee, Federal Privacy Commissioner Daniel Therrien urged legislators to recognize that the “idea that electronic devices should be considered as mere goods and therefore be subject to border searches without legal grounds is clearly outdated and does not reflect the realities of modern technology.”
So, who is right? Simmons is a very old case. Since then, technology has changed and the Supreme Court has demonstrated a dawning understanding of just how much data is included on our portable devices. In caselaw on electronic searches within Canada, the Court’s has recognized searches of electronic devices may be highly intrusive and trigger constitutional protection under section 8 of the Charter (see, eg, here and here). It remains to be seen whether the trend in recent search and seizures cases would colour the Supreme Court’s assessment of border searches – so far, it appears not to have influenced lower courts. Unfortunately, we have no modern appellate caselaw on the topic to guide us
Bottom line: what sort of Charter rights one has at the border is an important question for all travelers. Sooner or later, someone will fight all the way up to the Supreme Court – Ms Meng may have the time, resources and incentive to do so. And because Parliament has not legislated any standards in this area, the government may struggle to justify its reliance on a generic Customs Act power to search objects, now applied to devices containing more information than most libraries, much of it highly personal. We may be witnessing, in consequence, the regular Canadian approach to law reform: wait until the Supreme Court imposes fetters, then try and legislate in response to obvious new issues.