Cellphones, tablets, and laptops have become like modern-day diaries. They contain information about your likes and dislikes, your messages, your favourite and least favourite photos, and maybe even that juicy gossip you promised you wouldn’t tell anyone. How would you feel if somebody had the unfettered ability to access all that information? Until recently, Canadian border officers had the ability to search travellers’ electronics randomly.
However, in the recent case of R. v. Pike, the Ontario Court of Appeal (the “ONCA”) found that travellers have a reasonable expectation of privacy in the contents of their personal electronic devices. The ONCA held that the law which authorized Canadian border officers to search travellers’ electronics randomly was unconstitutional.
The Canadian Charter of Rights and Freedoms (the “Charter”) guarantees fundamental freedoms and legal rights for individuals. For example, section 8 of the Canadian Charter of Rights and Freedoms (the “Charter”) provides that everyone has the right to be secure against unreasonable search or seizure. The Charter, as part of the Canadian Constitution, is the supreme law of Canada, meaning that all law must be consistent with the rules set out in it. If they are not, they may not be valid.
Section 99(1)(a) of the Customs Act authorizes border officers to search electronic devices without reasonable cause. Two travellers, whose devices were searched under this law, and who were consequently charged with an offence under the Criminal Code, challenged the law’s constitutionality.
While other sections of the Customs Act require border officers to reasonably suspect a border law violation before searching people and goods, section 99(1)(a) does not. All that is required to justify a search under section 99(1)(a) is that in the border officers’ own minds, they were sincerely trying to find evidence of border law violations.
Privacy is a central concern under section 8 of the Charter, as it aims to protect people against unjustified intrusions of their privacy interests. Ultimately, the ONCA held that section 99(1)(a) of the Customs Act offends section 8 of the Charter because it authorizes border officers to search some of the most private information imaginable on the lowest possible standard to justify a search.
This decision affects us all, as millions of Canadians travel internationally each year with their personal computers, tablets, and smartphones. Canadians can have comfort in knowing that this recent case makes it harder for Canadian border officers to search their private devices.
Blog post written by articling student Gillian Belford
