In the recent case of R. v. Canfield, the Alberta Court of Appeal gave the decision that some Canadian criminal defence lawyers and those who follow our search and seizure jurisprudence have been waiting for: the limitless, warrantless search of electronic devices by CBSA officials at the border is unconstitutional, and s. 99(1)(a) of the Customs Act has been struck down.
The court acknowledged a practical point that many commentators (Steven Penney and me among them) have been making for some years, which is that electronic devices are not analogous to suitcases, purses or any other thing that you might take across the border. They contain massive amounts of personal information in which a person has a reasonable expectation of privacy, even if that expectation is somewhat reduced at the border. Despite this, the border search case law remained mired in the 1980s and allowed searches based on...well, based on nothing, not even suspicion. The CA found it was high time that this changed:
There have been significant developments, both in the technology of personal electronic devices and in the law relating to searches of such devices, since Simmons was decided in 1988. A series of cases from the Supreme Court of Canada over the past decade have recognized that individuals have a reasonable expectation of privacy in the contents of their personal electronic devices, at least in the domestic context. 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. [para 6]
The case contains interesting findings on both search and seizure (pursuant to s. 8 of the Charter) and the compulsion of statements in the context of a border search situation that becomes a detention (under s. 7). On the former, the CA took the unusual step of declaring s. 99(1)(a) to be constitutionally invalid as it pertained to searches of devices. On the latter, it held that once the search situation rises to the level of detention, the principle against self-incrimination arises and any demand for information (such as passwords!) will result in an unconstitutionally-compelled statement that will be inadmissible at trial.
This case is most likely not over. The federal Crown -- and CBSA in particular -- have not taken kindly to previous challenges of this sort, and will undoubtedly seek leave to appeal to the SCC.
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