Canada’s border is not a Charter-free zone

A Toronto corporate and securities lawyer who had his phone and computer seized by the Canada Border Services Agency for refusing to provide his passwords during a search is not surprised the Ontario Court of Appeal has deemed random, unfounded searches of electronic devices unconstitutional.

Nicholas dePencier Wright says the agency’s officers have been carrying out invasive searches without “reasonable and probable grounds” or warrants at the border for years.”

While he had no issue with officers at Toronto’s Pearson Airport searching his bags in 2019 when he returned from a four-month trip to Guatemala and Colombia, where he worked remotely while studying Spanish, Wright refused to provide passwords for his devices, as they contained solicitor-client privileged information. The devices were seized, and he was told they’d be sent to a government lab to try to crack the passwords. Wright, in turn, sued the federal government.

“The primary purpose of the program has been reported to be to search and download the contacts of travellers for persons of interest and to share with the RCMP, CSIS and reportedly US authorities as part of a larger database and information sharing program,” Wright says.

“An ancillary purpose is to fish for evidence of unlawful conduct or reasons to deny entry to non-citizens.”

Making clear the border is not a Charter-free zone, the Court’s decision in R v. Pike declares subsection 99(1)(a) of the Customs Act, which authorizes border officers to search electronic devices without any reasonable basis or suspicion that a law has been breached, unconstitutional because it violates the Section 8 Charter right to be free from unreasonable search and seizure.

Its constitutionality was challenged by two travellers, Jeremy Pike and David Scott, whose devices were searched under the section and who were consequentially charged with possessing and importing child pornography.

“This decision means that we’ve had years of unconstitutional searches occurring at the Canadian border,” says Shakir Rahim, the Canadian Civil Liberties Association’s litigation director.

“That should be a cause for alarm for all of us in Canada.”

The Court gave the federal government six months to complete the legislative process on Bill S-7, An Act to Amend the Customs Act and Preclearance Act, and codify the standard of “reasonable grounds to suspect” to conduct a search.

The federal government introduced the legislation in the Senate in 2022, which would have reduced the test for CBSA officers to search a device to “reasonable general concern.” Senators rejected this language and amended the bill to include “reasonable grounds to suspect.” This version of the bill passed the Senate, but has languished on the Order Paper in the House of Commons, and not advanced since October 2022.

Ontario Chief Justice Michael Tulloch wrote that the six-month suspension is appropriate because the legislation has already passed the Senate.

“This ‘head start’ eliminates the need for a longer suspension, which the Crown has not sought to justify.”

Senator Pierre Dalphond, a former Quebec Court of Appeal judge and current leader of the Progressive Senate Group, says the judgment’s six-month deadline will finally force the government’s hand. That’s important as there’s currently a patchwork of laws across the country in the wake of the Alberta Court of Appeal’s 2020 decision in R v. Canfield, which also declared the current border search regime unconstitutional. That’s left two provinces operating at a different standard at the border.

As for the bill’s text, Wright says the “reasonable general concern” language in the original draft of S-7 would have led to even more court challenges.

“The proposed Senate amendments turn what would otherwise be a cynical piece of legislation that seeks to evade the Court's ruling into a legitimate and likely constitutional response,” he says.

Unfortunately, the proposed Senate amendment falls short because it allows the lesser 'reasonable grounds to suspect' threshold instead of the more stringent 'reasonable and probable grounds.’

“In light of previous and ongoing CBSA abuses and overreach, only the more stringent 'reasonable and probable grounds' threshold can be expected to defend and uphold Canadian constitutional rights,” Wright says.

Dalphond says when S-7 was studied in committee, most senators agreed ‘reasonable grounds to suspect’ should be the threshold, as did every committee witness.

“The government was not very happy with this,” Dalphond says. “[Government Leader in the Senate] Senator Marc Gold opposed the changes at third reading.”

At the CCLA, which intervened in the case, Rahim says their position is that ‘reasonable grounds’ is the constitutional minimum, “but certainly when we’re discussing where the standard should normatively be, ‘reasonable and probable grounds’ is absolutely an acceptable and important standard to set, particularly because usually you would need a warrant to access one of those devices.”

He adds: “The relaxation of the warrant requirement is fairly extraordinary, so ‘reasonable and probable grounds’ would also reflect the kind of stringent standard that should be necessary.”

Rahim says this decision is important in curbing officials’ efforts to creatively interpret and expand the language set out in the statutes, policies, and regulations governing searches. Given the uncertainty to date, the government should make a proactive effort to seek guidance, including suggesting legislative intervention.

He says any standard that is set, including in the legislative context, also needs to consider specific safeguards and procedures relating to privileged communications or communications that create a heightened expectation of confidentiality.

“That is a concern of ours. It extends beyond solicitor-client privilege, and should be part of any meaningfully protective new regime,” Rahim says.

Peter Sankoff, an Edmonton criminal defence lawyer and University of Alberta professor, says this “very powerfully-written decision” is one of his contenders for case of the year.

“It covers more topics in more ways than any case I can remember,” he says.

“It’s going to be a leading precedent, not on just one topic. The Crown will probably seek leave to the Supreme Court, but if it stands as is, it covers a lot of ground on the law and makes very bold decisions.”

Sankoff says that while most people are interested in the portions relating to the border, there are also decisions that refine existing law on six other issues for defence lawyers.

The decision is incredibly balanced. He says wherever possible, it points out the shortcomings in the Crown position and at the same time, stresses how odious child sexual abuse materials are. It also highlights the need to ensure increasing standards for sentencing match the increasing standards of searches.

As for the ‘reasonable grounds to suspect,’ Sankoff says the decision left room for Parliament to set a lower standard for searching devices for certain kinds of documents like boarding passes, but otherwise, the Court has imposed a standard.

He says that it’s important that the Court re-emphasized the right to privacy of Canadians and that it took note of the number of searches that take place on an ordinary basis and find nothing.

“The problem with criminal decisions like this is that the average Canadian looks at this and the two [accused] trying to have evidence excluded in this way, which is what ultimately happened. But the Court is very careful to note that more than two-thirds of the time, (officers) find nothing and still do invasive searches even without even suspicion that anything is going on,” Sankoff says.

“As the Court points out, the border is not a Charter-free zone. I’m pleased that the Court took such a robust approach while still giving border agents plenty of flexibility to combat what is a real problem.”