BY SIMONE J. SMITH
Each year, millions of Canadians travel abroad, and we carry our personal devices (computers, tablets, and smartphones). These devices contain highly sensitive and private information about who you are, reflecting your: lifestyle, beliefs, relationships, finances, and health.
What you may not know is that even though your personal device is very personal, and highly sensitive because of the information on it, section 99(1)(a) of the Customs Act allows Canadian Border Officers to search these devices without any reasonable suspicion. This law was recently challenged by two travelers, Jeremy Pike and David Scott, who were charged with possessing and importing child pornography after their devices were searched. Now, although it is a good thing that this type of behaviour was caught, the key question in their appeal is whether this law is constitutional.
On August 12th, 2024, the Court of Appeal for Ontario released its decision in R v. Pike, 2024 ONCA 608, holding that section 99(1)(a) of the Customs Act, which authorizes border officers to search electronic devices without any reasonable basis, is unconstitutional because it violates the section 8 Charter right to be free from unreasonable search and seizure. CCLA was an intervener in the case.
The Canadian Civil Liberties Association is a human rights organization committed to defending the: rights, dignity, safety, and freedoms of all people in Canada. CCLA is the pre-eminent voice advocating for the rights and freedoms of all Canadians and all persons living in Canada. They are leaders in protecting rights and have earned widespread respect for their principled stand on such issues as: national security, censorship, capital punishment, and police and state accountability with a fearless voice on civil liberties, human rights and democratic freedoms.
Shakir Rahim, Director of the Criminal Justice Program, made the following statement, “CCLA applauds this important ruling, which makes it clear the border is not a Charter-free zone. As CCLA argued, standardless limitless searches of electronic devices, which contain highly private information, violate the Charter right to be free from unreasonable search and seizure.”
I had a chance to review the decision, and I found direct references of CCLA’s submissions at paragraphs:
- 63: The Crown’s related counterargument that travelers’ “choice” to travel with digital devices merits a lower threshold also fails. Because digital devices are our “constant companion[s]” (Bykovets, at para. 1), travelers need to bring them across borders to work and communicate. As the trial judge ruled, leaving them behind is not a meaningful choice. Neither is declining to leave and re-enter Canada, which, as the intervener Canadian Civil Liberties Association (the “CCLA”) submits, is not merely a choice but a section 6 Charter Just as “Canadians are not required to become digital recluses” to preserve their privacy (R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696, at para. 45), they also should not have to surrender the ability to enter and leave Canada with an indispensable instrument of modern life.
- 66: The law’s low threshold increases this risk because, as the CCLA submits, low threshold powers are the easiest for officers to wield to target, whether intentionally or not, racialized and disadvantaged people: R. v. Landry. While the law’s good faith purpose test offers some protection against this risk, its subjective nature makes that risk harder to detect because officers do not have to point to objective facts to justify the search and help negate the possibility of discrimination.
- 73: Simmons held that the state’s interest in suppressing the trafficking of drugs produced in other countries that had to be transported across the physical border to enter Canada justified the strip search law: at pp. 526-529. In contrast, digital contraband, even when downloaded to a device, is usually also stored on external servers and can be electronically transmitted into Canada, a mode of transmission that the Agency admits it has no mandate to control.
(They refer to Professor Steven Penney’s article “Mere Evidence? Why Customs Searches of Digital Devices Violate Section 8 of the Charter” and an article by Professor Robert Diab “Protecting the Right to Privacy in Digital Devices: Reasonable Search on Arrest and at the Border” (2018)
- 89: Manual searches can still invade large amounts of highly private information and, if officers invest the time, can be almost as revealing as forensic searches. Further, officers could easily use manual searches as a backdoor to gain information that would meet the higher threshold to conduct forensic searches.
They refer to an article by Bingzi Hu, “Border Search in the Digital Era: Refashioning the Routine vs. Nonroutine Distinction for Electronic Device Searches” (2022)
“Parliament must legislate a stringent standard with clear safeguards for the state to search an electronic device at the border. This reflects the fact that electronic devices are a trove of our most personal, intimate, and sensitive information,” shares Shakir.
The pandemic showed how willing our government is to overlook and ignore our rights and freedoms. This is why the Toronto Caribbean Newspaper will always keep you “In the Know,” when it comes to how to truly live as a FREE Canadian.
REFERENCES:
https://www.canlii.org/en/on/onca/doc/2024/2024onca608/2024onca608.html
https://www.canlii.org/en/ca/scc/doc/2017/2017scc60/2017scc60.html
https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html
https://ccla.org/wp-content/uploads/2024/04/CCLA-Intervener-Factum-R.-v.-Pike-Scott-COA-23-CR-0023-C70656.pdf
