Over the past 15 years, the law of search and seizure has become more complex, particularly with respect to the search and seizure of digital devices such as smartphones, laptops, tablets and other personal digital devices. Many such searches are carried out by police officers in the investigation of alleged crimes, but police are not the only law enforcement officials with the power to carry out such searches. Canadian Border Services officers can also perform searches under certain circumstances. With continuing signs that we are getting closer to the Canadian border re-opening for non-essential travel, it’s an appropriate time to look at a recent case from the Alberta Court of Appeal which looked at the constitutionality of searching digital devices upon entry (or re-entry) into Canada.

In the case of R v Canfield, 2020 ABCA 383 (CanLII), two different accused individuals arrived on separate occasions at Edmonton International Airport after travelling outside the country. Upon arriving at customs, Canadian Border Service Officers (BSOs for short) referred both men for secondary screenings due to criteria which BSOs used to identify potential law-breakers at the border. Upon the secondary screenings, each man had their digital devices searched (in one case a smartphone, the other case a laptop) and both devices were found to contain images of child pornography.

Due to the similarity in fact scenarios and criminal charges, the two cases were heard together. At trial, the judge was asked to determine a myriad of questions regarding the constitutional validity of the searches of personal electronic devices. This included answering the following questions:

  1. Whether the search pursuant to s. 99(1)(a) of the Customs Act violated the Candian Charter of Rights and Freedoms (the “Charter“),
  2. Whether the obtaining of evidence of child pornography on the accused’s devices constituted a breach of Sections 7, 8, 10(a) and 10(b) of the Charter, and if so, whether the evidence should be excluded under s. 24(2) of the Charter (the section of the Charter which deals with the exclusion of evidence on constitutional grounds).

The trial judge determined that the searches did not violate the Charter and ruled that even if they did, the evidence should not be excluded on the grounds of S.24(2). The accused appealed the decisions.

Reasonable Grounds or Suspicion

The Alberta Court of Appeal ruled that s. 99(1)(a) of the Customs Act violated s.8 of the Charter (which provides that everyone has the right to be free from unreasonable search and seizure) because it provides border officials with a limitless power to search individuals’ personal electronic devices. The section doesn’t indicate that a BSO must have reasonable grounds or suspicion before conducting a search of a traveller’s “goods” (which includes personal electronic devices).

The Court of Appeal’s view was that while a search of someone’s personal electronic device isn’t necessarily the equivalent to a search of an individual’s body “it may nevertheless be a significant intrusion on personal privacy”. A big part of this is that personal electronic devices can often contain personal information that gets to the “biographical core” of a person’s identity, which, among other things, includes “information which tends to reveal intimate details of the lifestyle and personal choices of the individual”. This is the case whether someone is at home or travelling through an airport. As such, the Court ruled that a higher threshold (such as having reasonable grounds to conduct the search, rather than an unfettered or unlimited discretion) should be met before a BSO can conduct such a search of a personal electronic device.

 Exclusion of Evidence Under the Charter

Although the Alberta Court of Appeal ruled that s.99(1)(a) was unconstitutional, and the accused’s Charter rights had been breached, a key point that they did agree with the Trial judge on was that the evidence against the accused obtained from the unconstitutional search should still be admitted for the trial. This was done pursuant to s. 24(2) of the Charter. Section 24(2) does allow for the possibility for including the evidence in spite of a Charter breach unless the admission of the evidence “would bring the administration of justice into disrepute”.

The Court of Appeal concluded that the overall good from including the evidence outweighed the negative factors of excluding the evidence. Essentially, the Court ruled that although the Charter violations to the accused were significant, the safety of children (which at the heart of the laws against child pornography) was paramount. Further, the BSOs had acted in good faith when conducting the searches since they believed and understood that their actions were authorized by the Customs Act at the time.

Search and Seizure and the Right to Privacy

Regardless of whether this case will be appealed to the Supreme Court, it demonstrates the importance of the overall expectation of privacy that one can expect to receive, in an increasingly digital age. It is notable that while the Court of Appeal ruled to include the evidence for the trial, it wasn’t on the grounds that the privacy of the individuals was unimportant but because protection against child pornography was considered to be of greater importance in this particular instance.

In future, however, BSOs may not be able to “get away” with conducting searches of digital devices unless they can demonstrate they had reasonable grounds for doing so. Above all, this is a complex, evolving area. If you have had personal electronic devices searched in the lead up to a criminal charge, you should discuss the issue as soon as possible with a skilled criminal defence lawyer to understand whether your rights may have been breached.

At Hicks Adams, our criminal defence lawyers can advise on how best to protect your rights and defend you in court, including for any situation where an illegal search may have been conducted. We defend individuals charged with a variety of offences, including child pornography, and from any charges stemming from illegal searches. Contact Hicks Adams in downtown Toronto to discuss the options available to help you through this time. Call us at 416-975-1700 or contact us online to schedule a confidential consultation.