Canada: A "Reasonable General Concern" – The Proposed New Standard For Searching Personal Electronic Devices At The Border

This blog post is an update to Raising expectations of privacy at the border – the search of personal electronic devices, a Dentons Commercial Litigation Blog published January 12, 2021, regarding the R v Canfield, 2020 ABCA 383¹ decision in which the Alberta Court of Appeal (ABCA) declared s. 99(1)(a) of the Customs Act² unconstitutional to the extent that it did not impose a limit on the search of personal electronic devices (PEDs) at the border.³

Since the release of the ABCA's ruling in Canfield 2020, there have been three important updates regarding the impugned provisions of the Customs Act and Canadians' privacy rights at the border. First, the Supreme Court of Canada denied leave to appeal of the Canfield 2020 decision,⁴ allowing the ABCA's declaration of unconstitutionality to stand; second, the ABCA, in R v Canfield, 2021 ABCA 352⁵ heard and granted an application by the Government of Canada requesting a six-month extension to the declaration of constitutional invalidity of s. 99(1)(a) of the Customs Act, extending the deadline to amend the Customs Act  to April 28, 2022; and third, the federal government introduced Bill S-7,which imposes a requirement that a Canada Border Services Agency (CBSA) officer have a "reasonable general concern" – a novel standard – that the Customs Act  or regulations, or any other act or regulation that prohibits, controls or regulates the importation or exportation of goods has been, or might be, contravened before searching a traveller's PED.

Bill S-7 amendments to address threshold requirement for the search of PEDs

This blog will focus  on the third update – the federal government introducing legislation to amend the Customs Act and create a threshold that must be met before a CBSA officer can search a traveller's PED at the border. Bill S-7, introduced for a first reading on March 31, 2022, fulfills, as stated by the Court in Canfield 2021, the Government of Canada's "obligation to move with alacrity to ensure priority is given to tabling and passing the proposed remedial legislation within the extension period."

Prior to the proposed amendments of Bill S-7, s. 99(1)(a) of the Customs Act governed the CBSA's ability to search PEDs as follows:

(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 or imported goods and take samples of imported goods in reasonable amounts.

1. (2)(a) of the Customs Actdefines "goods" to include "conveyances, animals and any documents in any form" and this definition has been interpreted to include documents in electronic form on PEDs.⁶

The relevant sections of the Bill S-7 amendments read as follows:

99.01 (1) At any time up to the time of release or at any time up to the time of exportation, an officer...may, in accordance with the regulations, examine documents, including emails, text messages, receipts, photographs or videos, that are stored on a personal digital device that has been imported or is about to be exported and is in the custody or possession of a person if the officer has a reasonable general concern that

(a) this Act or a regulation made under it has been or might be contravened in respect of one or more of the documents;

(b) any other Act of Parliament that prohibits, controls or regulates the importation or exportation of goods and is administered or enforced by the officer or any regulation made under that Act has been or might be contravened in respect of one or more of the documents; or

(c) one or more of the documents may afford evidence in respect of a contravention under

(i) this Act or a regulation made under it, or

(ii) any other Act of Parliament that prohibits, controls or regulates the importation or exportation of goods and is administered or enforced by the officer or any regulation made under that Act. (emphasis added)

The Bill S-7 amendments address the main issue present in the Canfield 2020 decision: the lack of a threshold requirement for the search of PEDs. As set out in Canfield 2020, the search of mail,⁷ the decision to carry out a strip search,⁸ and other various searches,⁹ require a CBSA officer to have reasonable grounds to suspect that prohibited, controlled or regulated goods are contained, concealed or secreted within the object or person being searched.¹⁰ When the analysis by the ABCA in Canfield 2020  is compared to the proposed language in Bill S-7, it is clear that the Government of Canada has attempted to remedy the threshold issue by requiring a CBSA officer to have "a reasonable general concern" that a relevant act or regulation has been or might be contravened before searching a traveller's PED.

This standard proposed in Bill S-7, "a reasonable general concern," appears to be a combination of a "reasonable" standard of suspicion and a "general" standard of suspicion, and was foreshadowed in at R v Canfield, 2020 ABQB 383 at paragraph 95:

"[95] The Crown opposes the appellants' suggestion that a reasonable suspicion standard should be applied to ensure that the law is minimally impactful, pointing out that reasonable suspicion is different from a generalized suspicion...The Crown argues that [a reasonable standard] would negatively impact CBSA officers' ability to conduct a search if they had only generalized information about a particular flight, or observed anomalous behaviour that would not meet the criteria of reasonable suspicion."¹¹

Further, the "reasonable general concern" standard is a novel standard, and has not previously appeared in the Customs Act or in any other federal legislation. It appears to have been created by the federal government solely to set the appropriate threshold for searching traveller's PED at border.

While the question of whether Bill S-7 and the new "reasonable general concern" standard is sufficient to withstand further litigation regarding the constitutionality of searching traveller's PED will be answered in future court decisions, it appears that the proposed standard is sufficient to meet the threshold requirements as discussed in Canfield 2020. While the ABCA in Canfield 2020  expressly refused to set a required threshold for the search of a PED to be constitutional, the Court stated that "...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"¹² but also stated "while the search of a computer or cell phone is not akin to the seizure of bodily samples or a strip search, it may nevertheless be a significant intrusion on personal privacy...to be reasonable, such a search must have a threshold requirement."¹³ The new standard present in Bill S-7 of a "reasonable general concern" appears to fit neatly as something more than the previously non-existent threshold requirement, while being something less than the reasonable grounds required for a CBSA officer to perform other, more intrusive searches.

Takeaway

Bill S-7 brings a new and novel standard for searching a traveller's PED and addresses Canfield 2020's ruling of the unconstitutionality of s.99(1)(a) of Customs Act.  Whether this new standard will be found to be sufficient to justify the search of traveller's PEDs remains to be seen, but for the time being, the potential gap in legislation caused by the Canfield 2020  decision has been filled, and if Bill S-7 passes in its current form, a CBSA officer will be required to have a "reasonable general concern" before they can search through the documents on a traveller's PED at the border.

Footnotes

1. R v Canfield, 2020 ABCA 383 [Canfield 2020].

2. RSC 1985, c 1 (2^nd Supp).

3. Canfield  2020, supra  note 1 at paras 188 - 192.

4. Sheldon Wells Canfield, et al. v Her Majesty the Queen, et al. 2021 CanLII 18037 (SCC).

5. R v Canfield, 2021 ABCA 352 [Canfield 2021].

6. Canfield 2020, supra  note 1 at para 23.

7. Ibid  at para 73.

8. Ibid  at para 74.

9. Ibid  at para 98.

10. Ibid  at para 73.

11. Ibid  at para 95.

12. Ibid  at para 75.

13. Ibid.