Is the Canada Border Service Agency ("CBSA") entitled to "examine any goods," including personal devices such as smart phones, of travellers at the Canadian border without reasonable and probable grounds? The Alberta Court of Appeal ("ABCA") recently answered no to this question in a decision that impacts Canadian customs, privacy, criminal, immigration and constitutional laws. The decision also provides further guidance on an individual's other interests at the border, including the determination of when they are considered to be detained.
For decades, and until the ABCA decision of Canfield,1 the Customs Act ("Act")2 gave broad search powers to the CBSA to "examine any goods" - including personal electronic devices - at the border without reasonable and probable grounds. Indeed, the Supreme Court has held on multiple occasions that travellers have a lower expectation of privacy at the border, including in the 1998 seminal border decision of R v. Simmons.3 The issue in Canfield was whether the Act was in line with modern understandings of privacy, in particular as it applied to searches of electronic devices.4
The ABCA unanimously held that groundless searches of personal electronic devices conducted pursuant to paragraph 99(1)(a) of the Act infringed on the "right to be free from unreasonable search and seizure" enshrined in section 8 of the Canadian Charter of Rights and Freedoms ("Charter"), and that such infringement "could not be deemed reasonable and justified in a free and democratic society" under section 1 of the Charter. Accordingly, paragraph 99(1)(a) of the Act was deemed unconstitutional, with an important caveat-only routine searches of personal electronic devices at the border were deemed unconstitutional. The ABCA did not go further, however, to determine the standard that would be sufficient to support such a search, such as reasonable and probable grounds or something else. Instead, the ABCA suspended its declaration for a period of one year to allow Parliament to appropriately respond,5 which means that these routine searches of personal electronic devices can continue for the next year. It remains to be seen how Parliament will respond to the ABCA's decision. and also whether the Supreme Court of Canada ("SCC") will grant leave to hear this case.6 The ABCA's decision is a ground-breaking recognition that "the reasonable expectations of privacy international travellers hold in their electronic devices must be considered anew and in context."7 However, until the leave application and a possible appeal to the SCC is addressed, those entering Canada, including business travellers with smartphones, tablets and laptops containing both personal and commercially sensitive information, should understand that the CBSA continues to have very broad powers enabling them to conduct routine searches of electronic devices.
The application for leave to appeal by the accused raises a number of issues of public importance with respect to not only border law, but also with respect to subsection 24(2) of the Charter. If the SCC decides to grant leave, the impact of its decision will be significant. For background, click here.
Mr. Canfield and Mr. Townsend were each charged with possession of child pornography after their respective cell phones and laptops were searched at the Edmonton Airport by CBSA Border Services Officers ("CBO or CBOs"). Each of the searches was conducted at secondary inspection.8
On questioning at primary inspection, the CBO found indicators that Mr. Canfield had been travelling for sex tourism for women and children, and referred him to secondary inspection. At secondary inspection, Mr. Canfield began sweating profusely and sex aids were found in his luggage. The CBO asked Mr. Canfield if he had child pornography on his cell phone. He confirmed that he did and showed the CBO related images from his cell phone.9
Mr. Townsend was similarly questioned at primary inspection. The CBO found Mr. Townsend's travel pattern and demeanor unusual and referred him to secondary inspection. At secondary inspection, a laptop and 11 other electronic devices were found. The CBO asked for the password to the laptop, which Mr. Townsend provided under the statutory compulsion of paragraph 99(1)(a) of the Act, and images of child pornography were found.10
At trial, both accused challenged the constitutionality of paragraph 99(1)(a) of the Act. The trial judge found that there was no reasonable expectation of privacy for a search of personal electronic devices under the Act, such that their section 8 rights were not engaged. The trial judge held that such a search merely engaged the "routine questioning which every traveller undergoes at a port of entry" (and that, in any event, such infringement would have been saved under section 1 of the Charter).11 The trial judge also concluded that sections 7 and 10 of the Charter (dealing with fundamental procedural rights and the right to counsel) had not been breached, as Mr. Townsend and Mr. Canfield were in his view never detained. Mr. Townsend and Mr. Canfield were convicted at trial.
Alberta Court of Appeal Decision
Stare Decisis - To Follow or Not to Follow Simmons
The ABCA began its analysis by determining whether Simmons should be reconsidered given the development of the law of personal electronic devices. In Simmons, the Supreme Court created "discrete categories" of border searches, which determined "the level of constitutional protection engaged."12 Because people cannot expect to cross international borders free from scrutiny, travellers ought to fully expect to be subject to a screening process. Thus, the first category, which is "routine questioning and searching" at the border, does not engage constitutional protections.
While recognizing the importance of legal precedent, the ABCA stated that developments in technology and widespread use of personal electronic devices had amounted to a change in circumstances that required revisiting Simmons.13 The ABCA held:
The trial judge's analysis misses the point. The court is asked to revisit the approach in Simmons not because the Supreme Court of Canada has changed the law, but on the basis that it is appropriate to consider whether the law should be changed.14
Ultimately, the ABCA did not need to "revisit the approach in Simmons", since the search of personal electronic devices was not at issue in Simmons (a distinction the ABCA later recognized in its reasons).15 Nonetheless, the ABCA's analysis on this point is useful fodder for counsel seeking to distinguish older cases that do not take into account modern technological realities.
Paragraph 99(1)(a) is Deemed Unconstitutional for Violating Section 8
Section 8 of the Charter is only engaged when a claimant had a reasonable expectation of privacy in the totality of the circumstances. Notwithstanding the border context, the ABCA found that the vast amount of information contained within personal electronic devices constitutes the "biographical core of personal information" that section 8 seeks to protect.16
In so doing, the ABCA carved out a narrow exception at border crossings when a personal device is engaged:
The high expectation of privacy that individuals have in their personal electronic devices generally must be balanced with the low expectation of privacy that individuals have when crossing international borders. Since border crossings represent unique factual circumstances for the reasonableness of a s. 8 search and seizure [.] the reasonable expectations of privacy international travellers hold in their electronic devices must be considered anew and in context.17
Relying on the Supreme Court's decision in Vu,18 the ABCA held that the distinction must be drawn because computers are fundamentally different than other "goods" authorized to be searched under paragraph 99(1)(a):
The Court in Vu concluded that "(t)hese numerous and striking differences between computers and traditional 'receptacles' call for distinctive treatment under s. 8 of the Charter. The animating assumption of the traditional rule - that if the search of a place is justified, so is the search of receptacles found within it - simply cannot apply with respect to computer searches".19
In this way, the ABCA was able to distinguish Simmons:
The categories of search recognized by Simmons relate primarily to physical or bodily privacy; they do not address informational privacy, which is also an aspect of the right to be protected against unreasonable search and seizure under s 8. The appellants point out that s 99(1)(b) provides greater protection for mail than is provided for electronic documents under s 99(1)(a). Section 99(1)(b) provides that an officer may "examine any mail that has been imported and . open or cause to be opened any such mail that the officer suspects on reasonable grounds contains any goods" that are prohibited, controlled or regulated. No such requirement is contained in s 99(1)(a). In "Privacy of Canadians at Airports and Borders" (Ottawa: Canadian Bar Association, September 2017), the authors put the distinction in privacy between electronic devices and mail this way:
Crossing the border with an electronic device is akin to crossing the border with every piece of mail a traveller has ever sent or received. It would not be unreasonable to expect the information stored in an electronic device to attract even greater protection than a physical envelope containing a single written letter.20
The ABCA ultimately held that a routine search of electronic devices were unreasonable and not authorized by law, thus in violation of section 8 of the Charter.21
The ABCA declined to determine the applicable standard for requiring a search of a personal device, i.e., whether reasonable and probable grounds or something less, leaving that issue to Parliament.22 The ABCA did recognize, however, the importance of border crossings by holding that some information may still be available to border officers upon routine screenings.23
Under section 1 of the Charter, the ABCA found that the searches prescribed by paragraph 99(1)(a) were not minimally impairing on the section 8 Charter rights, as the CBSA could still meet its objectives by requiring reasonable suspicion before conducting searches of personal electronic devices. Therefore, the provision could not be saved by section 1 of the Charter as described above and was deemed invalid.24
The ABCA Adopts and Applies the Detention Standard from the Ontario Court of Appeal in Jones
The ABCA also made important holdings in applying other Charter rights that often get short shrift in border cases.
On detention, the Ontario Court of Appeal's ("ONCA") decision in Jones is binding in Ontario. Detention at the border "occurs when the inquiry moves from 'routine questioning' to a more intrusive form of inquiry, initiated on the basis of a sufficiently strong particularized suspicion and with significant legal consequences".25 The ABCA in Canfield, though not bound by an appellate court in another province, agreed with the ONCA's holding in Jones and, in applying the facts, determined that the accused were detained.26
A similar analysis applies at the border for compelled statements. In Canfield, the ABCA held:
It is well established that routine questioning at the border is not a sufficiently intrusive state action to amount to a detention, even when there is a statutory duty to answer those questions [.]. Absent detention, there is no constitutional right to counsel and no constitutional right to remain silent at the border.27
Since the accused were detained, they were entitled to their right to counsel and to their right to remain silent, which were violated by virtue of section 11 of the Act (which requires travellers to answer truthfully the questions asked of them).
Notwithstanding the Charter Breaches, the Evidence was Admissible
Despite the infringement mentioned above, the ABCA did not exclude the evidence on the basis that it had been obtained in a manner that infringed the Charter under subsection 24(2).28 Under that provision, a court is required to consider whether admitting the evidence would bring the administration of justice into disrepute, having regard to the seriousness of the Charter-infringing state conduct, the impact on Charter-protected interests, and society's interest in adjudication on the merits.29
The ABCA's holding that society's interest in adjudication on the merits favoured admission of the evidence was unsurprising. The electronic evidence obtained, containing the child pornography, was real, highly reliable evidence that, if excluded, would gut the Crown's case. This consequence is perhaps inevitable in almost every other case where inculpatory evidence is located at the border.
The more interesting holdings concerned the two other branches of the test. Although the ABCA recognized that the searches of the accused "constituted a significant breach of their privacy interests,"30 that their right to counsel was undermined "in a non-trivial manner," and that their section 7 interests were "significantly undermined", the ABCA held that the CBOs acted in good faith and that they believed their actions were authorized by law, favouring admission. It therefore appears that acting in good faith trumps the unreasonable search, as well as the failure of the CBOs to provide the rights to remain silent and to counsel upon detention.
Impact on Cross-Border Transportation and Other Regulated Industries
The extent to which the Charter rights of people subject to regulatory schemes, like commercial drivers, are engaged at border crossings is typically even more limited than it is for the accused persons in Canfield. In regulated industries, courts in Canada are bound by the SCC's 1995 decision in Fitzpatrick,31 in which the SCC held that persons part of a regulated industry that are statutorily required to produce documents are not protected by the right to be free from self-incrimination. In that case, a fisherman was compelled by the Fisheries Act to provide fishing logs and hailing reports. The SCC held that the mere fact that the Fisheries Act compelled the fisherman to produce documents does not engage the protections against self-incrimination (and thus the documents could be used against him). The SCC held:
Surely it defies common sense to argue that the state, in seeking to regulate the commercial fishery by attaching certain conditions to a fishing licence, is coercing an individual to furnish information against himself. Quite the opposite in fact is true; the individual is furnishing information that is meant to benefit him or her, through proper and fair distribution of scarce fishing resources. Just because this information may later be used in an adversarial proceeding, when the state seeks to enforce the restrictions necessary to accomplish its regulatory objectives, does not mean that the state is guilty of coercing the individual to incriminate himself.32
Subsequent decisions have found that where a routine traffic stop of a commercial driver evolves into a criminal investigation, it is at that point that the accused's constitutional protections will be those of any other person.33
Commercial drivers may carry devices that contain both professional and personal information, for example a personal phone running an application that functions as an "Electronic Logging Device" for the purposes of compliance with the relevant federal or provincial hours of service regulations.34 It is likely that commercial drivers in such cases would be dealt with by the courts in the same way as the accused in Fitzpatrick, rather than those in Canfield, given the existence of a regulatory scheme. It would then follow that, where a driver has a device on which only personal information is stored, they would likely enjoy the same protections as "unregulated" persons.
Searches of personal electronic devices at the border
- Canfield demonstrates the importance of counsel's ability to bring modern technological issues to the front of their clients' cases and question the extent to which old laws are in keeping up with evolving Charter
- While ultimately the CBSA cannot search personal electronic devices at the border without some form of grounds (the extent of which is legally uncertain at present), for the next year, the CBSA will continue to be able to search personal electronic devices without grounds until Parliament says otherwise. What happens thereafter may be determined by the SCC, should it grant the applicants leave to appeal.
- Not every search of a personal electronic device will engage Charter Such a determination will turn on the specific circumstances of each particular case and the extent of such intrusion.
- Although no party has yet opened a file at the Supreme Court, the accused may seek guidance from the Supreme Court on the grounds required for a search and/or the application of subsection 24(2).
Right to counsel and right to be free from self-incrimination
- It may remain challenging to demonstrate that a person is detained in the Charter sense at the border. The CBSA will invariably take the position that each interaction with an accused is "routine" and it will be up to defence counsel to persuade the court otherwise despite the fact that "routine" interactions and "targeted" interactions may look similar at first blush.
- The critical issue is whether the facts rise to the level of a "particularized suspicion" as it is at this point that the person is detained and is entitled to Charter protections that flow therefrom.
1. R. v. Canfield, 2020 ABCA 383 ("Canfield")
2. Paragraph 99(1)(a).
3. R v. Simmons, 1988] 2 SCR 495. But see R. v. Jacoy,  2 SCR 548 (heard the same day as Simmons).
4. See e.g., R. v. Vu, 2013 SCC 60.
5. R v. Canfield, 2020 ABCA 383 at para 114-115.
6. Both Mr. Canfield and Mr. Townsend have filed applications for leave to appeal to the Supreme Court of Canada. Her Majesty the Queen in Right of Canada has also filed a notice of application for leave to cross-appeal: Supreme Court of Canada Docket, Sheldon Wells Canfield, et al. v. Her Majesty the Queen, et al., online: https://www.scc-csc.ca/case-dossier/info/dock-regi-eng.aspx?cas=39376.
7. R v. Canfield, 2020 ABCA 383 at para. 67.
8. R v. Canfield, 2020 ABCA 383 at para 1.
9. R v. Canfield, 2020 ABCA 383 at paras 51-55.
10. R v. Canfield, 2020 ABCA 383 at paras 56-58.
11. R. v. Simmons,  2 SCR 495 at para 27.
12. R v. Canfield, 2020 ABCA 383 at para 22.
13. R v. Canfield, 2020 ABCA 383 at paras 37-38.
14. R v. Canfield, 2020 ABCA 383 at paras 36.
15. R v. Canfield, 2020 ABCA 383 at paras 37.
16. R v. Canfield, 2020 ABCA 383 at para 64.
17. R v. Canfield, 2020 ABCA 383 at para. 67.
18. R v. Vu, 2013 SCC 60.
19. R v. Canfield, 2020 ABCA 383 at para. 72.
20. R v. Canfield, 2020 ABCA 383 at para. 73.
21. R v. Canfield, 2020 ABCA 383 at para 116.
22. R v. Canfield, 2020 ABCA 383 at para 75.
23. R v. Canfield, 2020 ABCA 383 at para 79.
24.R v. Canfield, 2020 ABCA 383 at paras 101-102, 108-109.
25. R v. Canfield, 2020 ABCA 383 at para 128.
26. R v. Canfield, 2020 ABCA 383 at paras 132-133.
27. R v. Canfield, 2020 ABCA 383 at paras 146.
28. R v. Canfield, 2020 ABCA 383 at para 186-187, finding that although the infringement was significant, the BSOs acted reasonably and in good faith, and the interests of society to adjudicate the case on its merits all weighed in favour of admission.
29. R v. Grant, 2009 SCC 32.
30. R v. Canfield, 2020 ABCA 383 at para 174.
31. R v. Fitzpatrick,  4 SCR 154. See also R v. White, 1999 CanLII 689 (S.C.C.).
32. R v. Fitzpatrick,  4 SCR 154 at para 42.
33. R v. Mossman, 2020 BCCA 299.
34. Commercial Vehicle Drivers Hours of Service Regulations (SOR/2005-313).
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