Time to modernize border search policies
Scott Newark LLB
Alberta Court of Appeal ruling on search of traveler electronic devices – a model for effective policy reform. and an appropriate role for the judiciary
On 1 November 2020, the Alberta Court of Appeal released its ruling in R v. Canfield which ruled that the current legislative authorizations under the Customs Act in sections 98 and 99 to search electronic devices of travellers seeking entry to Canada was a violation of section 8 of the Charter (unreasonable search and seizure), because the definition of “goods” in section 2 (s.2) of the Customs Act was not appropriately worded to justify the actions taken.
Of importance, while the ruling found a Charter violation that invalidated the current CBSA process of searching electronic devices of people seeking entry to Canada, the Court found the officers had acted in good faith, and that the evidence of child porn found on the devices of two travellers had been properly admitted at their trials as the Charter breach did not satisfy the s.24(2) requirement of bringing the administration of justice into disrepute.
Even more importantly, the ruling was suspended for one year for the express purpose of providing “… Parliament the opportunity to amend the legislation to determine how to address searches of personal electronic devices at the border. [para 7].
This completely appropriate and respectful approach by the Court means that Parliament can, and should, carefully review the ruling as well as the provisions of the Customs Act so that amendments can be made to sustain the important and necessary search powers of CBSA officers by modernizing the legislation.
The ruling is a welcome model of how Court Charter-based decisions should be constructed so as to respect the public safety operational needs, the legislative policy choice mandate of Parliament, and the importance of rights enshrined in the Charter. It also articulates to the Government – and Parliament – how the necessary modernization of the Customs Act can be accomplished so as to ensure Charter compliance.
Key elements of the Court ruling
• Fact based
The ruling is based on the facts of two criminal prosecutions for possession of child pornography that were discovered after searches, made in accordance with CBSA policy of referral to secondary examination, revealed child porn on one traveller’s smart phone and the laptop of another. Both searches were conducted at the Edmonton International Airport and both were Canadians returning from abroad. One incident occurred in March 2014 and the other in December 2014.
The ruling sets out the facts of the travellers’ interaction with CBSA officers, the grounds for referral to secondary and the ensuing grounds the officers had for deciding to conduct the search of the electronic devices. In one case (Cainfield) the traveller actually admitted to the officer that he had child porn on his phone. In the other case (Townsend), the officers discovered 4422 pictures and 53 videos of child pornography on the devices, all of which appeared to have been downloaded from the internet.
In both cases the matters were referred to the Northern Alberta Internet Child Exploitation Unit and a search warrant was obtained for a forensic examination of the various devices. Evidence at trial revealed that CBSA makes approximately 123 seizures of child porn at the border annually, of which the majority (between 73% and 80%) were on electronic devices. Further details of CBSA interceptions of illicit goods at the border accomplished because of its search authority under the Act was also provided. [para 44].
Expert evidence was also called at trial which detailed the devastation impacts of child porn on its victims. Evidence was also called from a senior CBSA official who provided precise details of CBSA Operational Policies relevant to the facts of the two cases.
Finally, the Court provided relevant detail on the expanded use of electronic devices by Canadians over the past three decades [para 28] which has particular relevance because of the previous 1988 SCC decision in R v. Simmons, which had ruled that there was a lower expectation of privacy at the border which has been the traditional rationale for allowing searches of electronic devices at the border under the existing legislation.
It is clear from the relevant information detailed by the Court in this ruling that its decision is not merely theoretical but instead is a carefully researched and informed decision. This fact will likely be of great assistance for Parliament to make the necessary changes to modernize the Customs Act in a Charter-compliant way that will still authorize the warrantless searching of electronic devices by CBSA officers at the border.
• Reviewing previous SCC decision
The Alberta Court of Appeal correctly cited a longstanding precedent that normally binding higher court rulings can be reconsidered if there is a material change in the factual circumstances in place at the time of the original ruling. As noted above, the 1988 Simmons decision from the SCC had been cited as authoring the search of electronic devices as being within the definition of “goods” in s. 2 of the Customs Act. The Court correctly considered the dramatic change in personal use of such devices since 1988 and the increased privacy implications resulting therefrom. While concluding the issue must be revisited, the Court also provided detailed analysis of the now relevant legal considerations and acknowledged that Parliament has the responsibility and capability of doing so. This is a very pragmatic approach that respects the public interests involved in the thorough screening of persons and their possessions (or redefined ‘goods’) when they seek entry to Canada as well as protecting Charter rights through factually relevant legislation, which the Court recognized as the role of Parliament, aided by the Court’s legal analysis.
• Refusal to exclude evidence under s. 24(2) despite Charter breach
In a rare and welcome display of the exercise of judicial discretion, the Court refused to exclude the evidence of possession of child porn, obtained during the search, on the basis that it did not bring the administration of justice into disrepute, which is the stated but usually ignored standard. The Court found that CBSA officers had acted in good faith in carrying out the search of the electronic devices as they legitimately believed they were legally authorized to do so. Hopefully this pragmatic and properly balanced approach will be adopted by other courts in the future.
• Need to amend and modernize the definition of ‘goods’
The ruling provides detailed factual information and operational history regarding the search activities of travelers by Border Security Officers, including the public purpose, which is a strong case for continuing the search authorization. The ruling also details the change in personal circumstances with today’s cyber/digital world, which literally did not exist at the time of the Simmons ruling in 1988. Given the privacy implications of such searches in today’s world, the Court rightly concludes that if Parliament intends to authorize such measures, it should expressly say so in the governing legislation – as the ruling recommends Parliament consider.
• Need to stipulate grounds and rationale for Electronic Device search
The Court noted that section 99 of the Customs Act holds that ‘reasonable grounds to suspect’ a search or examination is stipulated in all sub sections of section 99, with the lone exception of s. 99(1). Given the potentially significant privacy implications of a search or examination of an electronic device, the Court concluded that there should be some statutory articulation of necessary grounds to conduct such searches or examinations. This is clearly the most significant change that is mandated but, again, in should be easily accomplishable by Parliament in the time extended by the Court.
• CBSA policies are informed and relevant
The ruling made detailed and complimentary reference to evidence presented by the CBSA witnesses, and cited the applicable CBSA policies to show general support for the findings and recommendations of the Court ruling. It should also be noted that the Court found no misconduct whatsoever of any CBSA officers involved in the two cases before the Court.
• Need to update CBSA policy to ensure s. 10 of the Charter compliance
The ruling also recognized that the realities of traveller examination at the border inherently involve non-warrant related searches as well as targeted questioning. The Court cited the specific facts of the two cases before it, as well as CBSA policy, and concluded that s.10 Charter rights have the potential of being violated under the current process, and thus recommended that CBSA policy be updated to specify that when an authorized search or examination leads to the revelation and conclusion that an offence may have been committed, that officers at that point should proactively inform the traveller of their s.10 Charter rights. This is something that should be easily accomplished, and does not require legislative changes.
• Need for detailed Preamble in Bill implementing reforms
Although the ruling did not expressly recommend this, the cited references to the public safety and security importance of effective screening at the border is a demonstration of the correct approach for the needed legislative reforms. Preambles to a Bill explain the rationale and purpose of the legislation, and are incredibly important in our Charter-focused legal system, especially because Courts are required by precedent to consider them when determining the validity of legislation. Accordingly, the Bill should include a detailed Preamble and upon passage, the Bill could also be ‘referred’ to the SCC under the Supreme Court of Canada Act to determine its Charter compliance. This too is recommended.
This is a detailed and fact-based Court ruling on a subject of enormous public importance. The ruling is a welcome example of substantively informed legal analysis of Charter issues and the legal context that creates them but, most importantly, it delineates Charter problems in the current situation, suggests needed reforms and defers to the legislative policy mandate of our elected Parliament rather than imposing its own will through yet another example of ‘judicial activism’.
The Court has advised Parliament of what changes are needed and has given a one-year extension of the current laws so Parliament can make the necessary changes.
FrontLine encourages the Government of Canada and Parliament to take immediate action to get this done.
Scott Newark is a former Alberta Crown Prosecutor who has also served as Executive Officer of the Canadian Police Association, Vice Chair of the Ontario Office for Victims of Crime, Director of Operations for Investigative Project on Terrorism and as a Security Policy Advisor to the governments of Ontario and Canada. He is currently an Adjunct Professor in the TRSS Program in the School of Criminology at Simon Fraser University.