Protecting Rights at the Canadian Border
In practice, privacy and constitutional issues may arise upon entry to Canada when border officers ask travellers to unlock their electronic devices for scrutiny.
The Canada Border Services Agency (subsequently referred to as “the agency”) is allowed to examine goods for customs purposes per paragraph 99(1)(a) of the Customs Act (R.S.C., 1985, c. 1 (2nd Supp.)). For the time being, the agency interprets the term “goods” to include digital devices and media. Even though a threshold for grounds to inspect devices is not determined, the current policy does not authorize routine examinations.
Additionally, subsection 139(1) of the Immigration and Refugee Protection Act (S.C. 2001, c. 27) permits officers to search travellers and their belongings in regards to admissibility issues. Consequently, officers may scrutinize “personal effects” when reasonable grounds give rise to believe that an individual did not declare their true identity or has hidden relevant documents; or has carried out or will perpetrate people smuggling, human trafficking or document fraud.
The agency’s enforcement manual (ENF 20) titled "Detention” defines reasonable grounds as to believe “a set of facts and circumstances that would convince a normally prudent and informed person. They are not mere suspicions. The opinion must have an objective basis.” Many cases involve possession or trafficking of drugs, human smuggling, and child pornography; a tendency that has become apparent in the jurisprudence of the Canadian courts.
Currently, many jurists are waiting for the Supreme Court of Canada to rule on the right to be secure against unreasonable search or seizure as protected by section 8 of the The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, with impatience.
Guidelines
To date, laws on the search or seizure of electronic devices at the Canadian border remains unsettled. However, the agency’s policy is in harmony with the interpretation by lower courts, contrary to the portrayal of this controversy by the news media.
In R. v. Singh, 2019 ONCJ 453 (CanLII) [Singh], a search resulted in a seizure supporting criminal activity. In Singh, the Ontario Court of Justice held as follows:
[79] The operational bulletin issued for the purpose of providing guidance on a CBSA officer’s authority to examine digital devices or media at ports of entry, makes it clear that border officers must be cognizant of where their examination crosses over into the realm of a criminal investigation. If the officer was exercising his Customs Act search powers for the purpose of finding evidence to support the Customs Act charge of smuggling child pornography then Mr. Singh’s charter application fails.
…
[88] It is important and necessary that Border Security Officers have broad search powers. Their job is to secure our borders and keep our citizens and our country safe. People who seek entry into Canada must answer questions truthfully and they must provide information and evidence. As long as Border Officers act for Customs Act and/or IRPA purposes, they can conduct these searches without a warrant.
The Office of the Privacy Commissioner of Canada (OPC) summarized the state of the law on privacy and charter issues on December 17, 2018:
Canadian courts have generally recognized that people have reduced expectations of privacy at border points. In this context, privacy and other Charter rights continue to apply but are limited by state imperatives of national sovereignty, immigration control, taxation, public safety, and security. The Canadian courts have not yet ruled on whether a border officer can compel a person to turn over their password and on what grounds, so that their electronic device may be searched at a border crossing.
Further, the OPC clarified the extent of the CBSA officer’s authority to examine digital devices at the border.
While the law is unsettled, CBSA policy states that examinations of personal devices should not be conducted as a matter of routine; such searches may be conducted only if there are grounds or indications that “evidence of contraventions may be found on the digital device or media.
”The current policy can be found in the agency’s operational bulletin (PRG-2015-31) on “Examination of Digital Devices and Media at the Port of Entry - Guidelines”.
Since June 30, 2015, the agency’s policy restricts the broad search powers to cases with a “multiplicity of indicators that evidence of contraventions may be found on the digital device or media.” Furthermore, officers must explain the types of data they examine and their reasons for inspection.
In a nutshell, the devices of travellers refusing to give their passwords to border officers will be seized per subsection 140(1) of the IRPA or detained under section 101 of the Customs Act until the matter is settled in court. However, CBSA officers may only examine information stored on digital devices. Consequently, CBSA Officers shall limit access to any data stored remotely or online by disabling internet connectivity.
In line with CBSA guidelines, the OPC advises travellers entering Canada to limit their carry-on devices or remove personal information from them. Another option would be to store sensitive information on a secured server to be retrieved at their destination.
In conclusion, the OPC provides instructions on how to file a complaint with the Canada Border Services Agency’s Recourse Directorate or the Office of the Privacy Commissioner of Canada.
Statistics
The agency’s statistics show that only 0.013% of travelers had their electronic devices inspected from November 20, 2017 to June 30, 2020.
The agency emphasizes the success of device examinations by noting that 38.5% of the searches resulted in revealing a customs or immigration-related offence like money laundering, danger to public safety (e.g. child pornography, obscenity, etc.) or undervalued as well as undeclared goods.
Tips
Know the rules!
Show your printed itinerary to agents.
Use separate devices for personal and professional purposes.
Change your password after inspection.
Join a trusted traveller program (NEXUS, FAST, etc.) after September 8, 2020.
Mark confidential documents.
Avoid raising red flags by travelling to “high-risk” destinations alone, taking “unusual” travel routes, carrying multiple devices, or buying “last minute” tickets.
Disclaimer
Information provided in this article does not constitute immigration or citizenship advice. Authorized representatives are the only individuals allowed to assist applicants with immigration and citizenship services for a fee. In addition, please note that immigration laws, regulations and policies are changing constantly.
If you need help with the assessment of your case, then obtain sound immigration or citizenship advice from an authorized representative at MyConsultant.ca. Only with a proper case strategy can you acquire Canadian permanent residence or Canadian citizenship.
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