Corporate electronic devices may be protected – strong passwords, two-factor authentication, facial recognition – but is your company’s private data actually safe from inspection while employees are travelling to and from Canada? Until recently, the answer to this question was a resounding ‘no.’ In late 2020, the Alberta Court of Appeal (“ABCA”) made a decision that could significantly change travellers’ expectations of privacy at the border. In R v Canfield, 2020 ABCA 383, a unanimous Court of Appeal held that the examination of travellers’ personal electronic devices (“PEDs”), such as laptops and phones, by Canadian Border Services Officers pursuant to s. 99(1)(a) of the Customs Act, RSC 1985, c 1, is unconstitutional. In this decision, the ABCA deviated from previously decided law to consider how the evolution of technology and its societal relevance over the past 30 years should change travellers’, and thus companies’, reasonable expectation of privacy in their laptops, cellphones and tablets at the border.
Background and trial decision
At trial, two individuals were travelling back into Canada through the Edmonton International Airport on separate occasions. Upon re-entry, officers of the Canadian Border Services Agency referred both individuals for secondary inspections. At this time, both individuals’ PEDs (a cell phone and a laptop) were searched pursuant to s. 99(1)(a) of the Customs Act. Section 99(1)(a) allows for the routine examination of any “goods” by a Border Services Officer. The definition of goods in s 2 of the Customs Act had previously been interpreted to include the search of PEDs in the border context. Evidence of illicit materials was found on both of the individuals’ devices during these secondary inspections.
The individuals’ argument was jointly heard before the Court of Queen’s Bench of Alberta in In R v Canfield, 2018 ABQB 408. The issues at trial were:
- whether the searches of their devices offended the Charter of Rights and Freedoms (“Charter”),
- whether the evidence of illicit materials found on the devices was obtained in breach of s 7 (right to life, liberty and security of the person), s 8 (right to be free from unreasonable search and seizure), and ss 10(a) and 10(b) (the right on arrest or detention to be informed promptly of the reasons therefor and to retain and instruct counsel without delay and to be informed of that right) of the Charter, and, if so,
- whether the evidence should be excluded pursuant to s 24(2) of the Charter.
The trial judge approached assessing these issues as the Supreme Court of Canada did in the 1988 case, R v Simmons,[1] which is considered the leading authority on searches conducted at the border. The Court in Simmons recognized that the reasonable expectations of privacy of individuals at the border are lower than in most other situations. As well, three distinct categories of border searches, each increasing in degree of privacy expectation, were identified:
- Routine questioning that every traveller is subject to, sometimes accompanied with a baggage search or pat of outer clothing,
- A strip or skin search conducted in a private room after a secondary examination, and
- A body cavity search.
The search of PEDs had been previously included in the first Simmons category, which is viewed as the least intrusive type of routine search, not raising any constitutional issues or engaging the rights protected by the Charter.[2] The trial judge declined the requests of the individuals to revisit the decision in Simmons in relation to the search of PEDs, ultimately finding that the evidence located on the devices was admissible and had not been obtained in breach of the individuals’ Charter rights. The trial judge concluded that, even if he was wrong, the evidence should not be excluded under s 24(2) of the Charter.
On appeal
- Revisiting Simmons
On appeal, the ABCA found that the trial judge had erred, and decided to revisit Simmons when considering whether PEDs can be routinely searched at the border without engaging the Charter. A binding decision such as Simmons may be reconsidered by lower courts where a new legal issue is raised, and where there is a change in the circumstances or evidence that ‘fundamentally shifts the parameters of the debate’.[3]
The ABCA discussed how, since the Simmons decision, there have been significant developments in the technology of PEDs and the law relating to such devices. For example, in 1997 – a decade after Simmons was released – only 22% of Canadian households had a cell phone for personal use.[4] The ABCA compared that statistic to January 2020, where 96% of Canada’s population had a mobile connection and 94% used the internet.[5] Of all internet users, 89% owned smartphones, 85% owned a laptop or desktop computer, and 55% owned a tablet device.[6] The ways that people utilize their PEDs were found to have fundamentally changed since 1988.
The ABCA then went on to discuss a series of cases from the Supreme Court of Canada over the past decade that have recognized the reasonable expectation of privacy held by individuals in the contents of their PEDs in a domestic context.[7] These developments in the law, coupled with the significant technological advancements and use of PEDs, were found to meet the threshold test for revisiting Simmons.
- Constitutionality of s 99(1)(a)
In order to determine whether s 99(1)(a) offended section 8 of the Charter, the ABCA had to assess what expectation of privacy is reasonable in PEDs in the context of an international border crossing. The ABCA noted that giving access to PEDs is “akin to giving access to one’s biographical core and to a myriad of potentially sensitive documents and communications”. This high expectation of privacy that individuals have in their PEDs was compared to the low expectation of privacy that individuals expect when crossing international borders. It was acknowledged that some contents of a PED must be made available to border agents as part of the routine screening of passengers, such as travel-related documents, electronic boarding passes, and customs related information. However, there is no limit placed on how far a search into the contents of PEDs can go. Other goods such as physical mail may only be examined at the border under the Customs Act if there are reasonable grounds for suspicion by Border officials, yet the entire contents of PEDs can be searched without such limit. These unlimited and suspicion-less searches of PEDs allowed by virtue of the broad definition of “goods” and s 99(1)(a) of the Customs Act were found to be unreasonable under section 8 of the Charter.
Ultimately, the ABCA found that s 99(1)(a) of the Customs Act was unconstitutional to the extent that it imposed no limits on the searches of PEDs at the border, and is not saved by s 1 of the Charter. Section 99(1)(a) was declared by the ABCA to be invalid. The definition of “goods” found in section 2 of the Customs Act was found to be of no force or effect with respect to the inclusion of the contents of PEDs for the purpose of section 99(1)(a). This declaration of invalidity was suspended for one year to give Parliament the opportunity to amend the legislation with respect to searches of PEDs at the border.
The ABCA held that the appellants’ rights under s 7, 8, and 10 of the Charter were violated by these searches. However, despite the infringements on the appellants’ rights, the evidence was not excluded pursuant to s 24(2) of the Charter in order to maintain society’s confidence in the justice system.
What’s next? Privacy and the SCC
Travellers have come to accept a low expectation of privacy in general when it comes to crossing borders. However, devices such as cell phones, tablets, and laptops have become inextricably linked to individuals’ core biographical and personal information over the past decades. Everything from banking and financial information to personal photos and communications are contained within these devices. The unfettered ability for Canadian Border Services to search through such information, without grounds for suspicion, was found to be unconstitutional and represented a significant intrusion on travellers’ privacy by the ABCA. This emphasis on travellers’ expectations of privacy in their digital information by the ABCA is a noteworthy decision in Canadian privacy law, especially when considered against the public safety interests that are advanced through the ability to search these devices at the border. This sends a strong message that, even in matters of public security, the contents of PEDs should receive a degree of constitutional protection by the courts.
Both parties in R v Canfield have appealed the ABCA’s decision to the Supreme Court of Canada as of December 18th, 2020.[8] A decision on appeal by the SCC will be important regardless of the outcome. It may result in the reconfiguration of section 99(1)(a) of the Customs Act and the creation of a clear threshold for border officials regarding when and how searches of travellers’ PEDs may be undertaken, or it may result in the continuation of the ability for border officials to access individuals’ highly personal information without reason or suspicion. Either direction will represent a significant step in Canadian privacy law.
[1] R v Simmons, [1988] 2 SCR 495, 55 DLR (4th) 673.
[2] Simmons at para 27.
[3] Canada (Attorney General) v Bedford, 2013 SCC 72 at para 42; Carter v Canada (Attorney General), 2015 SCC 5 at para 44.
[4] https://www.statista.com/topics/3529/mobile-usage-in-canada/.
[5] https://datareportal.com/reports/digital-2020-canada.
[6] https://datareportal.com/reports/digital-2020-canada.
[7] R v Morelli, 2010 SCC 8; R v Vu, 2013 SCC 60; R v Fearon, 2014 SCC 77.
[8] Both accused filed notice of application for leave to appeal on November 18, and the Crown filed notice of application for leave to cross-appeal on December 18: https://www.scc-csc.ca/case-dossier/info/dock-regi-eng.aspx?cas=39376.
