Alberta Court of Appeal rules that searches of electronic devices at the border are unconstitutional

In a case that could upend how phone and laptop searches are conducted at Canadian border crossings, the Alberta Court of Appeal has ruled a federal Customs Act section dealing with inspection of goods violates the Charter when it comes to such technologies.

In R v Canfield, the court found the Canada Border Services Agency infringed on the rights of two men charged with child pornography offences after a search of their cell phones at Edmonton International Airport. It wrote their rights were violated under s 8 of the Charter of Rights and Freedoms, which says everyone has "the right to be secure against unreasonable search and seizure," and s 10, which specifies rights upon arrest or detention, including the right to consult a lawyer and the right to habeas corpus.

It also found that statements they made after detention are subject to the protection of s 7 under the Charter guaranteeing "the right to life, liberty and security of the person and the right not be deprived thereof except in accordance with the principles of fundamental justice."

"It's a far-reaching decision because hundreds of thousands of people come through the border every year," said lawyer Kent Teskey, who represented the appellants with Evan McIntyre. "Now it has been held that the Canada Border Services Agency must have grounds to search these devices."

McIntyre added that the decision is also significant because this is one of a handful of cases where a lower court has revisited a Supreme Court of Canada decision. "The leading case on constitutional protections for travellers dates back to 1988, well before the advent of personal electronic devices and cell phones.

Teskey also noted that the section of the Customs Act challenged, in this case, is the same one that has "become relevant" in the extradition of Huawei executive Meng Wanzhou.

In the decision, released Thursday, the appeal court wrote: "We declare that the definition of 'goods' in s 2 of the Customs Act is of no force and effect insofar as it includes the contents of personal electronic devices for the purpose of s 99(1)(a) of the Customs Act."

However, the court still concluded that the evidence, in this case, should not be excluded, under s. 24(2) of the Charter, because the border guards who detained the two appellants acted in good faith and "reasonably believed that such searches were authorized by s 99 (1) (a) of the Customs Act."

The court also suspended the declaration of invalidity of the relevant section of the Customs Act for one year to provide Parliament with the opportunity to amend the legislation to determine how to address searches of personal electronic devices at the border.

The Crown or the appellants could also ask for leave to appeal to the Supreme Court of Canada.

Sheldon Canfield and Daniel Townsend were each charged with child pornography possession in 2014, and later convicted. The evidence against them included photographs and videos retrieved when the Canadian Border Services Agency searched their electronic devices (a cell phone and laptop computer, respectively). Both appellants are Canadian citizens.

At their trial, the Crown relied on the leading legal authority on searches conducted at the border, R v Simmons, a Supreme Court of Canada case decided in 1988. That case recognized that the degree of personal privacy reasonably expected by individuals seeking to enter Canada is lower than in most other situations.

Section 99(1)(a) of the Customs Act permits the routine examination of any "goods." The search for personal electronic devices, such as laptop computers and cell phones, has been treated as coming within the definition of "goods" for the purposes of s 99(1)(a). The search for goods is included in the Simmons-defined category of routine searches that can be undertaken without any individualized grounds.

The trial judge took the same approach to the search of the appellants' personal electronic devices and declined the defence request to revisit Simmons in relation to those searches. The judge concluded that s 99(1)(a) of the Customs Act is valid and constitutional and the evidence of child pornography found on the appellants' devices was admissible as it had not been obtained in breach of their Charter rights. He further concluded that, if he was wrong, the evidence should not be excluded under s 24(2) of the Charter.

On appeal, Canfield and Townsend argued that s 99(1)(a) of the Customs Act is unconstitutional and offends s 8 of the Charter "because it imposes no restrictions on the ability to search personal electronic devices."

The applicants also argued that individuals, even those at the border, have a reasonable expectation of privacy concerning their electronic devices. The ruling should be revisited to the extent that it does not distinguish between the search of such devices and the search of other goods. The trial judge had concluded that Simmons "remains binding authority," and he declined to reconsider the matter.

The appeal court panel acknowledged that a binding precedent, such as Simmons, can be revisited if there are new legal issues or significant developments in the law or a change in the circumstances or evidence that fundamentally shifts the parameters of the debate. The decision said there "have been significant developments, both in the technology of personal electronic devices and the law relating to searches of such devices, since Simmons was decided in 1988." The issue is to consider whether it is appropriate that the law be changed.

The court also noted that in 1997, a decade after Simmons was released, only 22 per cent of Canadian households had a cell phone for personal use; by 2004, that number had increased to 59 per cent.

In January 2019, there were approximately 28 million mobile internet users in Canada.  In January 2020, 96% of Canada's population had a mobile connection, and 94% used the internet. Of those who use the internet, 89% own a smartphone, 85% own laptops or desktop computers, and 55% own a tablet device.

A series of Supreme Court cases have recognized that individuals have a reasonable expectation of privacy when it comes to the contents of personal electronic devices. The appeal court wrote: "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."

As a result, the court wrote that it is satisfied that the trial judge "erred by failing to recognize that Simmons should be revisited to consider whether personal electronic devices can be routinely searched at the border."

The court also concluded that s 99(1)(a) of the Customs Act is unconstitutional because 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)."