When you go to the airport, what would you say if customs agents wanted to open all the files on your laptop?  What would you say if you were randomly demanded access to your smartphone when driving up to the border?  The typical response is to just agree.  The recent Ontario Superior Court case of R. v. Pike, [2022] O.J. No. 1764, puts some constraints on police who intend to search your digital devices at the border.

The Search of Mr. Pike’s Devices

If you fit the profile of Mr. Pike, you should count on getting your personal digital devices searched when entering Canada.  Mr. Pike flew back to Toronto from Indonesia where he claimed to be teaching English to adults.  When questioned further, he later revealed that he was teaching children.  He was a male travelling alone, his passport had stamps from multiple countries known for sex tourism, and he had previously been sentenced to 15 years’ imprisonment for child pornography.  When he landed in Toronto, he was found with 14 digital devices.  To most, it would come as no surprise that an officer of the Canadian Border Services Agency (CBSA) directed Mr. Pike to an area for further questioning and inspection.

After about an hour of questioning, the CBSA demanded Mr. Pike to provide his passcode for his computer.  Mr. Pike complied, and the CBSA agent searched all the phones and computers that were working.

It was not until about 2.5 hours after Mr. Pike’s initial interaction with the CBSA did the officer advise him of his right to counsel.  About 45 minutes after that, the officer discovered an image believed to meet the Criminal Code definition of child pornography.

What Search Powers Do Police Have at the Border?

Most travellers will not fit Mr. Pike’s profile.  Nonetheless, CBSA agents may demand access to the digital devices of many innocent people.  Those people rightfully wonder whether such demands are legal.  What to do if encountered with such a demand?

The Customs Act allows random searches at the border that would be permitted virtually nowhere else in Canada.  Section 99(1) allows such officers to search virtually anything a person brings with him or her into a Canadian port of entry.  Specifically, it states,

An officer may

(a)    at any time up to the time of release, examine any goods that have been imported and open or cause to be opened any package or container of imported goods and take samples of imported goods in reasonable amount.

That definition includes phones and computers.

Unfortunately for privacy lovers, there is no “threshold requirement” for searches under this provision of the Customs Act.  A threshold is the minimum level of suspicion or belief an officer must have in order to legally detain, search, or arrest.  Reasonable suspicion, for instance, is commonly referred to as “reasonable possibility” that a suspect committed an offence or has contraband.  Section 99 of the Customs Act is that it has never required anything like that.

The constitutionality of the laws allowing these searches has historically been upheld. This is because there is a much lower expectation of privacy when entering the country.  We would open the floodgates to cocaine if were to overly restrain border police from searching luggage and phones.

This has been the conventional wisdom since the Supreme Court of Canada’s decision in R. v. Simmons, [1988] 2 S.C.R. 495.  The Supreme Court decided this, however, in the late 1980s.  Given its ruling, a law permitting searches without a reasonable suspicion may constitutional for your suitcase, but what about your cellphone?   The landscape of privacy interests has shifted markedly with the ubiquity and evolution of personal digital devices.

CBSA Can Randomly Search a Traveller’s Stuff?  Even Phones and Computers?

There are very few places in Canada where police are permitted to search whatever, whenever, and however they feel.  Ports of entry have historically been some of those places, but in R. v. Pike, it was decided that personal digital devices have become a bridge too far.

Section 8 of the Canadian Charter of Rights and Freedoms protects the right to be free from unreasonable search and seizure.  The fundamental purpose of this provision is the protection of privacy.

These days, many (if not most) Canadians have little choice about bringing their personal digital devices when crossing the border.  It is for those reasons that Justice Harris decided that the Customs Act’s application to such devices should be reviewed for constitutionality.

The Charter Does NOT Allow the Completely Random Searches of Digital Devices

A basic statement of Canadian law is this: where there is a greater privacy interest in a thing (e.g. house, body cavity, computer) the law calls for a greater justification for searching it.  There must be a higher threshold to search deeply personal things.

It is true that our borders demand high security for the protection of our country, but the privacy of our phones and computers demand protection as well.  Our privacy must be protected from searches that are truly arbitrary.

For this reason, Justice Harris observed in R. v. Pike that the state’s ability to search personal digital devices, without even a reasonable suspicion, could not be squared with the right to be free from unreasonable search and seizure.  As Justice Harris stated,

What people read and what they listen to can be divined from a phone or computer. Tastes and preferences can be deduced from web sites visited and data from applications. Who a person’s friends and family are, who they speak to, and who they shun, can all be investigated on a personal digital device. What people think and what they do can be derived from data on a digital device.

[ . . . ]

The intrusion of the state into informational privacy through investigation of digital media has the potential to extend well beyond anything George Orwell could possibly have imagined. Big Brother conducted constant surveillance: watching and listening. A search of the data in a personal digital device not only accomplishes this, it digs deep into the heart of who we are.

Justice Harris further observed that Canadians are not willing to tolerate full searches of their personal digital devices without any grounds required by the law (e.g. a reason to suspect contraband on a smartphone) – nor without any restrictions on the areas (e.g. files on these devices) that could be examined.  His Honour’s exact words were,

[A] search of a personal digital device without any threshold requirement of grounds or suspicion, together with a limitless scope for the search, cannot be squared with s. 8 of the Charter.  These two factors, in combination, lead to a violation of s. 8 of the Charter. The state cannot intrude on the entire body of private information on a phone based on no more than a whim. The circumstance that a person is crossing a border into Canada is not enough to lead to such a sacrifice of personal privacy to the state. 

In sum, some threshold is constitutionally necessary for devices that contain so much information about the people who carry them.  The Crown argued that the CBSA’s own policy would be enough to save the constitutionality of section 99(1) of the Act.  The policy stated that searches of digital devices should not be done “as a matter of course [and]… should only occur where there is a multiplicity of indicators suggesting evidence of a contravention …

Justice Harris disagreed that this saves the constitutionality of section 99(1).  His Honour reasoned that the CBSA’s standard was vague and amorphous.  Nervousness, for example, could be an “indicator” under that standard.  Moreover, CBSA policies do not carry the force of law.  His Honour held that the law itself must have a threshold requirement.  Because it had none, His Honour held that section 99(1) of the Act is unconstitutional.

What This Meant for Mr. Pike

Because the CBSA agent searched Mr. Pike’s devices under an unconstitutional law, he breached his right to be free from unreasonable search and seizure.  Quite surprisingly, the CBSA officer who searched Mr. Pike’s devices testified that he did not have a reasonable suspicion.

As such, even if the Custom Act had stated a minimum threshold to search, this officer – on his own evidence – would have fallen short of it.  It is worth noting, however, that the conduct of the police amounted to another breach of an important right protected by the Charter – his right to legal counsel.

The Right to Counsel During Searches of Personal Devices

The CBSA agent undoubtedly detained Mr. Pike.  Section 10(b) of the Charter requires police to advise people, upon detaining them, of their right to retain and instruct counsel without delay.  The law allows border officers to ask travellers routine questions.  Such routine questioning does not amount to detention and thus does not require police to advise on the right to counsel.

However, where border authorities have decided to go beyond routine questioning and engage in a more intrusive form of inquiry (usually because of some sufficiently strong particularized suspicion), that individual may well be detained.  Once a person is detained, state agents must immediately advise him or her of the right to counsel.  This didn’t happen in Mr. Pike’s case.

Simply put, the CBSA officer should have advised Mr. Pike of this right much sooner.  Despite the CBSA officer’s testimony that he did not have a reasonable suspicion, Justice Harris quite correctly found that he did.  That was the reason the officer sent Mr. Pike to an area for further inspection where he was intensely questioned for hours, and where the officer intended to search all of his devices.

Somewhere in the middle of all that questioning, the officer demanded from Mr. Pike his passcode for a digital device.  Justice Harris found that Mr. Pike was detained at that moment.  His Honour held that the officer should have informed Mr. Pike of his right to counsel at that very moment.  Instead, the officer read that right after another hour and twenty minutes of investigating.  This amounted to a clear violation of Mr. Pike’s s. 10(b) Charter guarantee.

The remedy for the breach of Mr. Pike’s section 8 and 10(b) rights was the exclusion of the evidence the CBSA found on his phone.  In other words, the Court would not consider the child pornography the CBSA found in the Crown’s prosecution for child pornography.  That makes a conviction for child pornography quite difficult.

Going Forward

Going forward, how should travellers react if CBSA officers demand access to digital devices?  A traveler’s failure to provide a passcode could result in charges under the Customs Act.  As such, the vast majority of people will feel immense pressure to unlock their phones when commanded by the CBSA.

The silver lining is this: in the wake of R. v. Pike, we should anticipate that the CBSA will require at least a reasonable suspicion to demand access to digital devices.  Where an officer does make such a demand, the officer has likely singled out the traveller.  In those cases, the traveller is more likely to be legally detained, and CBSA officers will face more pressure to inform such a traveller of the right to counsel before searching his or her devices.  Failure to do so may very well result in the exclusion of evidence – just as was the case for Mr. Pike.

by Matthew Wolfson

If you have any questions, please do not hesitate to call David or Matthew at David Anber’s law office for more information.