COURT FILE NO.: CR-21-657-00
DATE: 2022 04 14
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
Maria Stevens, for the Provincial Crown
Lisa Csele and Ian Bell, for intervener, the Public Prosecution Services of Canada
JEREMY PIKE
- and -
DAVID SCOTT
Daisy McCabe-Lokos, for the Applicant Pike
Naomi Lutes, for the Applicant Scott
HEARD: January 10-11, February 7-9, 2022
REASONS ON CONSTITUTIONAL CHALLENGE
D.E. HARRIS J.
I. INTRODUCTION
[1] A person entering Canada from outside the country is liable to have their luggage searched by customs officials. People entering Canada are well aware of this possibility and accept it as part of the reality of travelling. What is not as well known is that customs officials have the right to search—without underlying grounds—cell phones, computers, and other personal digital devices, and to request that travellers turn over their passwords to enable the search.
[2] The search power which permits the search of digital devices at the border is s. 99(1)(a) of the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.). The Applicants each had their digital devices searched under the authority of this provision. Child pornography was found on their devices in both instances. Both now argue that in so far as s. 99(1)(a) of the Customs Act authorizes the search of digital devices it infringes the right to be free from unreasonable search or seizure under s. 8 of the Charter of Rights and Freedoms. To this extent, it should be held to be of no force or effect under s. 52 of the Constitution Act, 1982.
[3] The Applicants rely on the judgment in R. v. Canfield, 2020 ABCA 383, 395 C.C.C. (3d) 483 (Alta. C.A.); leave refused, 2021 18037 (S.C.C.), in which the Alberta Court of Appeal agreed with the arguments the Applicants make here and struck down s. 99(1)(a) as it applies to digital devices.[^1]
[4] In my view, the answer to the constitutional question raised is dependent on the resolution of two competing values. First, it has been established for more than thirty years, starting with the early Charter of Rights and Freedoms case of R. v. Simmons, 1988 12 (SCC), [1988] 2 S.C.R. 495, 55 D.L.R. (4th) 673, 1988 CarswellOnt 91 (S.C.C.), that a traveller’s expectation of privacy at the border is drastically reduced. What is permissible for officials at the border in dealing with travellers coming into Canada would not often pass muster outside the border context, either on the street or in the home. Constitutional requirements fundamentally shift at the border in terms of both the s. 8 right to be free from unreasonable search and seizure and the meaning of “detention” in s. 10 of the Charter: R. v. Monney, 1999 678 (SCC), [1999] 1 S.C.R. 652, 171 D.L.R. (4th) 1 (S.C.C.), at paras. 35 and 42.
[5] Against the lower expectation of privacy at the border lies the fundamental privacy interest in a personal digital device, whether it be a cell phone, computer or hard drive. The nature and extent of individual privacy in a personal digital device has been elaborated upon by the Supreme Court of Canada in several ground-breaking judgments over the last decade.
[6] The answer to the question posed by these Applicants requires examination of these two competing principles in the context of the s. 99(1)(a) of the Customs Act search power.
II. THE SEARCHES OF MR. PIKE AND MR. SCOTT
[7] Both Mr. Pike and Mr. Scott’s devices were searched as they came across the border into Canada. There is no need to delve into too much factual detail at this stage. I have heard all the relevant evidence with respect to Mr. Pike but only a skeletal outline of the evidence with respect to Mr. Scott presented for the purposes of the constitutional question.
[8] Mr. Pike arrived at Toronto Pearson International Airport on the afternoon of February 10, 2020, from Indonesia through London. There was a “lookout for contraband” for Mr. Pike on the customs computer system which was then written on to his customs declaration card. He was sent to the secondary area for a search. Border Services Officer (BSO) Grama met Mr. Pike at 4:23 p.m. His observations and his Canada Border Services Agency (CBSA) computer told him: Mr. Pike’s passport had multiple travel stamps to countries known for sexual tourism; he was a single male travelling alone; Mr. Pike had a criminal record for making child pornography and had been sentenced to 15 years for that offence; he had served seven and a half years of his sentence; Mr. Pike was a registered sex offender and his teaching licence had been revoked because of his criminal offences.
[9] Mr. Pike was in possession of 14 devices, but only 11 were working. Within half an hour, by 5:08 p.m., BSO Grama’s questioning of Mr. Pike had revealed some inconsistencies and deepened the concerns already present. At 5:22 p.m., BSO Grama asked for Mr. Pike’s password for his computer and Mr. Pike provided it. With all the devices, BSO Grama put them on airplane mode to ensure they were not connected to the internet. At 5:25 p.m., he began to search Mr. Pike’s digital devices starting with Mr. Pike’s cell phone. He searched Mr. Pike’s laptop and used it to search Mr. Pike’s hard drives, USB sticks, and memory cards. It was his intention from the beginning that he would search all of the devices. All of the working devices were searched over about a two-hour period. BSO Grama gave Mr. Pike his right to counsel at 6:46 p.m., mainly because of the long duration of the ongoing search. He also testified that Mr. Pike was becoming agitated. It was not until the search of the last device that BSO Grama found an image that he believed constituted child pornography. The time was 7:33 p.m. The search ended and the Peel Regional Police came to arrest Mr. Pike.
[10] In his search of the devices, BSO Grama looked for photos and videos. He looked in the downloads folder and found books including one on masturbation and sexual offenders/sexual abuse. With most of the devices, BSO Grama did not record where he searched in the file directory trees. The single child pornography image was found in a folder called “resume”.
[11] While Mr. Pike was flagged by customs with a “lookout for contraband”, Mr. Scott was “roved”. The purpose of roving is to identify possible non-compliance with the Customs Act, particularly pertaining to contraband. Two BSO officers approached Mr. Scott at the baggage claim area on June 27, 2020. He had flown in from Houston. His passport showed that he was travelling from Belize. He was sent for secondary search based on “indicators” including travel stamps to Belize, Mexico, and the Dominican Republic, countries said to be high risk for narcotics and sex tourism. He was also a man travelling alone. BSO Sodhi referred Mr. Scott to secondary search intending to search all his luggage. During the search of his luggage, multiple hard drives were found. This was believed to be an indicator for child pornography. BSO Sodhi asked for Mr. Scott’s password and Mr. Scott gave it to him, saying that it was the same for all devices.
[12] BSO Sodhi said he typically starts searching a digital device by looking at the photo gallery and then also examines the downloads, documents, and desktop files. BSO Shortt volunteered to assist in the search, as did BSO Corbeil. BSO Corbeil testified that on cell phones he typically looks in emails, photos, Facebook, WhatsApp, Outlook messenger, and pdf files.
[13] Some stories on the subject of child pornography were found in Mr. Scott’s devices and, shortly thereafter, images constituting child pornography. The Peel Regional Police were notified and Mr. Scott was arrested.
III. THE CUSTOMS ACT SEARCH PROVISION
[14] The searches in both Mr. Pike and Mr. Scott’s cases were based on s. 99(1)(a) of the Customs Act, a provision in force since 1985. It reads:
99 (1) 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.
[15] The term “goods” is defined in s. 2 of the Act as:
goods, for greater certainty, includes conveyances, animals and any document in any form.
[16] The definition of “goods”, by its plain language, is all-inclusive. “Goods” includes personal digital devices.
[17] The parties agree that s. 99(1)(a) provides customs officials with a search power having no threshold for intrusion. In other parts of the Customs Act and in other statutory search provisions, thresholds are almost universally required. The most common thresholds are either reasonable grounds or the lower standard of reasonable suspicion.
[18] Evidence was adduced on this application from Denis Vinette, Vice President of the Travelers Branch of the CBSA. He testified in Canfield as well, claiming that this unfettered power is necessary to accomplish legitimate objectives including the detection of child pornography on digital devices. There are CBSA policy directives which apply to border officers are respectful of personal privacy.
IV. THE REDUCED EXPECATION OF PRIVACY AT THE BORDER
[19] In Simmons, the appellant was detained and searched on suspicion of smuggling drugs. The search was conducted under the former ss. 143 and 144 of the Customs Act. This provision contains a “reasonable cause to suppose” threshold. Referring to another of his foundational Charter rulings, Chief Justice Dickson held for the Court that the standards from Hunter et al. v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145, 11 D.L.R. (4th) 641, 1984 CarswellAlta 121 (S.C.C.), did not apply at the border: there was no need for prior authorization, the search need not be authorized in a judicial manner, and a threshold of reasonable probable grounds to believe was not required. The Chief Justice held that the absence of these safeguards at the border did not give rise to a breach of the s. 8 right. He held at pp. 528-529 (Carswell, para. 52):
I accept the proposition advanced by the Crown that the degree of personal privacy reasonably expected at customs is lower than in most other situations. People do not expect to be able to cross international borders free from scrutiny. It is commonly accepted that sovereign states have the right to control both who and what enter their boundaries. … Consequently, travellers seeking to cross national boundaries fully expect to be subject to a screening process. … Physical searches of luggage and of the person are accepted aspects of the search process where there are grounds for suspecting that a person has made a false declaration and is transporting prohibited goods.
In my view, routine questioning by customs officers, searches of luggage, frisk or pat searches, and the requirement to remove in private such articles of clothing as will permit investigation of suspicious bodily bulges, permitted by the framers of ss. 143 and 144 of the Customs Act, are not unreasonable within the meaning of s. 8. Under the Customs Act, searches of the person are not routine, but are performed only after customs officers have formed reasonable grounds for supposing that a person has contraband secreted about his or her body. The decision to search is subject to review at the request of the person to be searched.
[20] In the best-known passage from Simmons, the Chief Justice set out, at pp. 516-517 (Carswell, para. 30), three categories of customs searches:
It is, I think, of importance that the cases and the literature seem to recognize three distinct types of border search. First is the routine of questioning, which every traveller undergoes at a port of entry, accompanied in some cases by a search of baggage and perhaps a pat or frisk of outer clothing. No stigma is attached to being one of the thousands of travellers who are daily routinely checked in that manner upon entry to Canada, and no constitutional issues are raised. It would be absurd to suggest that a person in such circumstances is "detained" in a constitutional sense, and therefore entitled to be advised of his or her right to counsel. The second type of border search is the strip or skin-search, of the nature of that to which the present appellant was subjected, conducted in a private room, after a secondary examination and with the permission of a customs officer in authority. The third and most highly intrusive type of search is that sometimes referred to as the "body cavity search", in which customs officers have recourse to medical doctors, to X-rays, to emetics, and to other highly invasive means.
[21] As can be seen, the three categories of search were based on the extent to which each delved into personal privacy. The least invasive was routine questioning and a pat down search. The most invasive was a body cavity search. In between was a strip search.
[22] In the result, Simmons upheld the constitutional validity of ss. 143 and 144 of the Act. Subsequent cases have confirmed the reduced expectation of privacy at the border and, at the same time, emphasized the strong national interest in protecting our borders. In R. v. Jones (2006), 2006 28086 (ON CA), 211 C.C.C. (3d) 4, 81 O.R. (3d) 481 (Ont. C.A.), at para. 30, Justice Doherty emphasized the pressing interest Canada has in controlling what and who comes into the country. He wrote:
30 No one entering Canada reasonably expects to be left alone by the state, or to have the right to choose whether to answer questions routinely asked of persons seeking entry to Canada. As the appellant himself testified, travellers reasonably expect that they will be questioned at the border and will be expected to answer those questions truthfully. Travellers also reasonably expect that Customs authorities will routinely and randomly search their luggage. … The state is expected and required to interfere with the personal autonomy and privacy of persons seeking entry to Canada.
[See also Monney, at paras. 42-43.]
[23] The state interest in controlling the entry of persons and goods is of crucial national importance. Chief Justice Dickson said in Simmons at p. 528 (Carswell, para. 51), “National self-protection becomes a compelling component in the calculus.” As a consequence, the reasonable expectation of privacy of individuals is attenuated.
[24] Individuals have come to expect that they are subject to questioning and search at the border. The recognition of a zone of altered Charter rights at the border is deeply entrenched in our culture and our law. Not only is the reasonable expectation of privacy drastically reduced, the meaning of detention within s. 10 of the Charter is transmuted from its definition in non-border contexts: see Dehghani v. Canada (Minister of Employment & Immigration), 1993 128 (SCC), [1993] 1 S.C.R. 1053, 101 D.L.R (4th) 654, 1993 CarswellNat 57 (S.C.C.), at pp. 1071-1074 (Carswell, paras. 36-43).
V. DOES SIMMONS DICTATE A CONCLUSION THAT A SEARCH OF A PERSONAL DIGITAL DEVICE IS ROUTINE AND NOT CONTRARY TO SECTION 8 OF THE CHARTER?
[25] Both the Provincial Crown and the Public Prosecution Services of Canada (PPSC) argue forcefully that Simmons is binding authority requiring the dismissal of this application. In my view, that is not a tenable position.
[26] The idea, first established in Simmons and reinforced in Mooney and other cases, that the expectation of privacy at the border is greatly reduced remains undiminished to this day. Further, the stratification of privacy interests in searches of luggage, strip searches, and body cavity searches undertaken in Simmons retains its usefulness as a conceptual method to analyze border issues under the Charter. The difficulty for the Crown is that Chief Justice Dickson did not purport to exhaustively delineate intrusions into individual privacy at the border. Informational privacy was not examined as it did not arise on the evidence, the subject being a body search for drugs on the appellant’s person. The Chief Justice’s perspective was—and it could not be otherwise—retrospective.
[27] On p. 516 (para. 27) of Simmons the Chief Justice wrote, “[T]he cases and the literature seem to recognize three distinct types of border search.” He was looking backward, not forward. The developments in technology could not have been anticipated.
[28] In 1988 when Simmons was decided, personal digital devices did not exist. There were early versions of personal computers, but they were a far cry from what exists today. The same is true of cellphones. The Simmons case could not and did not examine personal digital devices. Only a modern-day prophet could have foreseen the digital revolution which has altered virtually every aspect of our lives.
[29] Acceptance of the Respondents’ contention that the Simmons decision from 35 years ago is definitive against this application would fossilize the law and the Charter in its 1988 state. That would be antithetical to the life of a constitutional document. Justice Dickson (as he then was) in Hunter v. Southam, relied heavily at pp. 155-56 (Carswell, paras. 17-18) on Edwards v. Attorney General for Canada, 1929 438 (UK JCPC), [1930] A.C. 124 (H.L.), [1930] 1 D.L.R. 98, at pp. 136-37, for the proposition that the Constitution “planted in Canada a living tree capable of growth and expansion within its natural limits.”
[30] Justice Dickson also said at p. 155 (para. 16):
A constitution, by contrast [to a statute], is drafted with an eye to the future. Its function is to provide a continuing framework for the legitimate exercise of governmental power and, when joined by a Bill or a Charter of Rights, for the unremitting protection of individual rights and liberties. … It must, therefore, be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers. The judiciary is the guardian of the constitution and must, in interpreting its provisions, bear these considerations in mind.
[31] The world has changed. The Charter must grow and be responsive to social and economic developments. It is impossible to pretend that the digital age has not profoundly changed our lives. The Charter must keep pace.
[32] Furthermore, the Respondents’ reliance on stare decisis is flawed. Authority is only binding if there is a direct correlation between the previous authority and the legal point in issue.
[33] When we ask how Simmons matches up with the decision to be made here—what is its ratio decidendi?—a comparison reveals fundamental differences. The three levels of privacy catalogued in Simmons at p. 516 (para. 30) do not touch on informational privacy. Furthermore, the provision at issue in Simmons had a threshold of reasonable suspicion. In contrast, the provision at issue here, s. 99(1)(a) of the Customs Act, has none. The importance of the reasonable suspicion threshold to the decision in Simmons was crucial. Its importance is evident in several key passages in the reasons of Chief Justice Dickson upholding the provisions of the Customs Act from constitutional attack (see paras. 53-54)
[34] In conclusion, while the decision in Simmons has enduring lessons for border situations such as this one, it is not directly on point and cannot itself defeat the application advanced by the two Applicants.
[35] In the alternative, we arrive at the same answer by applying the caselaw governing when a trial judge is justified in deviating from appellate authority: see Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331 (S.C.C.), at para. 44; Bedford v. Canada (Attorney General), 2013 SCC 72, [2013] 3 S.C.R. 1101 (S.C.C.), at paras. 42-44. A trial judge can depart from appellate jurisprudence when: (1) There is a new legal issue raised; or (2) There is a change in the circumstances or evidence that “fundamentally shifts the parameters of the debate”: Carter, at para. 44. As the Court said in Carter, “stare decisis is not a straitjacket that condemns the law to stasis”: Carter, at para. 44.
[36] The argument for departing from Simmons is at least as strong as the arguments which met the Supreme Court’s approval in Bedford and Carter. The second condition in Carter is clearly met. Search of personal digital devices raises new issues which were not present in 1988. The advent of the digital age is a fundamental change in circumstances. A new legal analysis is unavoidable.
[37] In conclusion, whether it is found that Simmons is not directly on point or that personal digital devices require new thinking in the treatment of personal privacy at the border, Simmons is incapable, by itself, of answering the constitutional issue raised by the Applicants.
VI. DOES SECTION 99(1)(A) OF THE CUSTOMS ACT BREACH SECTION 8 OF THE CHARTER?
A. The Reasonable Expectation of Privacy in a Personal Digital Device
[38] There is no need to dwell on the prerequisites to the presence of a reasonable expectation of privacy. The only aspect that concerns us here is whether Mr. Pike’s subjective expectation of privacy was objectively reasonable. In R. v. Marakah, 2017 SCC 59, 2017 CSC 59, [2017] 2 S.C.R. 608 (S.C.C.) at para. 11 the four required criteria were set out: 1. What was the subject matter of the alleged search? 2. Did the claimant have a direct interest in the subject matter? 3. Did the claimant have a subjective expectation of privacy in the subject matter? 4. If so, was the claimant’s subjective expectation of privacy objectively reasonable? The Crown alleges that the digital devices were possessed by Mr. Pike. He clearly had a subjective expectation of privacy in them: R. v. Jones, 2017 SCC 60 (S.C.C.), at para. 32.
[39] The first step in analyzing the constitutional issue and whether there was a cognizable reasonable expectation of privacy must be to ascertain the privacy interest in a personal digital device. Once this has been done, the nature and extent of the statutory search power intruding on personal privacy can be assessed.
[40] The Chief Justice said in Simmons at p. 517 (para. 28):
[I]t is obvious that the greater the intrusion, the greater must be the justification and the greater the degree of constitutional protection.
[41] In a similar vein, it was held in R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34 (S.C.C.), at para. 46, in the context of workplace computers:
The closer the subject matter of the alleged search lies to the biographical core of personal information, the more this factor will favour a reasonable expectation of privacy. Put another way, the more personal and confidential the information, the more willing reasonable and informed Canadians will be to recognize the existence of a constitutionally protected privacy interest.
[42] The privacy inherent in a personal digital device is informational privacy. The first important Charter case considering informational privacy was R. v. Dyment, 1988 10 (SCC), [1988] 2 S.C.R. 417, 45 C.C.C. (3d) 244, 1988 CarswellPEI 7 (S.C.C.), at pp. 427 and 429 (Carswell, paras. 17 and 22) where Justice LaForest wrote:
Westin tells us, society has come to realize that privacy is at the heart of liberty in a modern state: see Alan F. Westin, Privacy and Freedom (1967), pp. 349-50. Grounded in man’s physical and moral autonomy, privacy is essential for the well-being of the individual. For this reason alone, it is worthy of constitutional protection, but it also has profound significance for the public order. The restraints imposed on government from prying into the lives of the citizen go to the essence of a democratic state.
[Informational privacy is based on] the dignity and integrity of the individual. As the task force put it (p. 13): “This notion of privacy derives from the assumption that all information about a person is in a fundamental way his own, for him to communicate or retain for himself as he sees fit.” In modern society, especially, retention of information about oneself is extremely important. [Emphasis Added]
[43] The first Supreme Court case to have examined informational privacy in a personal digital device was R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 (S.C.C.). In that case, the privacy interest in the computer was magnified by the computer being in the appellant’s home, That setting is at the opposite end of the spectrum from the border context. Justice Fish held for the majority in Morelli:
2 It is difficult to imagine a search more intrusive, extensive, or invasive of one’s privacy than the search and seizure of a personal computer.
105 Computers often contain our most intimate correspondence. They contain the details of our financial, medical, and personal situations. They even reveal our specific interests, likes, and propensities, recording in the browsing history and cache files the information we seek out and read, watch, or listen to on the Internet.
106 It is therefore difficult to conceive a s. 8 breach with a greater impact on the Charter-protected privacy interests of the accused than occurred in this case [a search of a computer in the home].
[44] The Supreme Court continued the exploration of personal digital devices in R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657 (S.C.C.). The Court held in Vu that if a search warrant executed on a home is to include the right to search a computer, it must be specifically authorized in the warrant and supporting information to obtain. Justice Cromwell wrote at paras. 40-43:
(i) Computers Are Different From Other “Receptacles”
40 … Computers are “a multi-faceted instrumentality without precedent in our society”: A. D. Gold, “Applying Section 8 in the Digital World: Seizures and Searches”, prepared for the 7th Annual Six-Minute Criminal Defence Lawyer (June 9, 2007), at para. 3 (emphasis in original). Consider some of the distinctions between computers and other receptacles.
41 First, computers store immense amounts of information, some of which, in the case of personal computers, will touch the “biographical core of personal information” referred to by this Court in R. v. Plant, 1993 70 (SCC), [1993] 3 S.C.R. 281 (S.C.C.), at p. 293. The scale and variety of this material makes comparison with traditional storage receptacles unrealistic.
42 Second, as the appellant and the intervener the Criminal Lawyers’ Association point out, computers contain information that is automatically generated, often unbeknownst to the user. A computer is, as Gold put it, a “fastidious record keeper”: para. 6.
43 Third, and related to this second point, a computer retains files and data even after users think that they have destroyed them. … Computers thus compromise the ability of users to control the information that is available about them in two ways: they create information without the users’ knowledge and they retain information that users have tried to erase. These features make computers fundamentally different from the receptacles that search and seizure law has had to respond to in the past.
[45] In R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621 (S.C.C.), the issue was whether a search incident to arrest included the right to search a cellphone. Justice Cromwell limited this method of search and in the process wrote at para. 51:
51 It is well settled that the search of cell phones, like the search of computers, implicates important privacy interests which are different in both nature and extent from the search of other “places”: R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657 (S.C.C.), at paras. 38 and 40-45. It is unrealistic to equate a cell phone with a briefcase or document found in someone’s possession at the time of arrest. As outlined in Vu, computers — and I would add cell phones — may have immense storage capacity, may generate information about intimate details of the user’s interests, habits and identity without the knowledge or intent of the user, may retain information even after the user thinks that it has been destroyed, and may provide access to information that is in no meaningful sense “at” the location of the search: paras. 41-44.
[46] The United States Supreme Court has also remarked on the unique, highly sensitive privacy interests residing in a computer or cell phone. That Court, like our Supreme Court, has drawn a fundamental distinction between a physical search and the search of a computer or cell phone: Riley v. California (2014), 573 U.S. 373.
[47] The informational privacy born of the digital revolution has required the Supreme Court in Morelli, Vu, and Fearon to clear away an exclusive area for personal digital devices in the s. 8 Charter jurisprudence. Search warrants no longer permit the search of everything found in a place. Computers are excepted because of their unique properties and the abundance of private information they store: Vu, at para. 45. Similarly, the law with respect to search incident to arrest had to be modified to provide “protection against the risk of wholesale invasion of privacy which may occur if the search of a cell phone is constrained only by the requirements that the arrest be lawful and that the search be truly incidental to arrest and reasonably conducted”: Fearon, at para. 58.
[48] In the same manner as with search warrants and search incident to arrest when the subject is a personal digital device, search powers at the border must be re-assessed. As in those contexts, there is fundamental difference between a regular customs search and the search of a personal digital device. The unprecedented repository of privacy in a personal digital device requires expansion of Chief Justice Dickson’s three categories of search from Simmons.
[49] In so far as a comparison can be made, it may be that a search of a cell phone, for instance, is less invasive than a strip search. That was Justice Cromwell’s conclusion in Fearon at para. 63. However, it is important to carefully consider the privacy interest residing in a personal digital device.
[50] Digital devices have become a hub of personal privacy consolidating a wealth of information into one physical receptacle. Correspondence with friends and family, personal diaries, love letters, personal photographs of all kinds, accounts and details from personal therapy and counselling, medical records, comprehensive financial information, employment history, and something as deeply intimate as sexual history can be derived from a personal digital device, to name only a few examples. These old pre-digital types of information are now gathered together in digital form in one compact and portable physical space.
[51] New types of information are also generated by a cellphone or computer. Likes and dislikes in food, entertainment, and any number of other things can be gleaned from the data. Tracking information to show where people go and how long they stay can be derived from location services, location data from photographs, and other information. 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.
[52] The information on a personal digital device is all-encompassing. The core biographical information to be gleaned from a personal digital device could be used to construct an extraordinary, intricately detailed profile of the owner of the device. Such a profile would be highly accurate and dauntingly comprehensive—physically and psychologically. If one were to set out to clone an individual, seizing and extracting information from their digital devices would be a good place to start. A personal digital device mirrors who we are. It is the manifestation of both our external and internal life.
[53] 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.
[54] Control over our personal information allows for us to remain anonymous as we move through our lives. A search of a personal digital device has the potential to relinquish control over our personal information, a major facet of our autonomy and identity: R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212 (S.C.C.), at para. 40; Dyment, at pp. 427 and 429 (para. 17 and 22). If every aspect of our lives were known, our sense of identity would be eroded. As Justice Doherty wrote in R. v. Ward, 2012 ONCA 660, 112 O.R. (3d) 321 (Ont. C.A.), at para. 71:
Personal privacy protects an individual’s ability to function on a day-to-day basis within society while enjoying a degree of anonymity that is essential to the individual’s personal growth and the flourishing of an open and democratic society.
B. The Nature of a Section 99(1)(a) Search
[55] Section 99(1)(a) of the Customs Act is extraordinary in the varied array of legislative search provisions as it contains no threshold showing which must be attained before a search is permitted. On its face, there is no pre-condition to its use. This lack of a threshold is a function of the provision’s crucial purpose over many years to protect Canadian borders. No one could credibly argue, nor has anyone to date, that a s. 99(1)(a) search of the luggage of an incoming traveller, without a threshold, violates the Charter. The possibility of random search has a critical deterrent effect on all travellers. A requirement of prior grounds would be an open invitation to those intending to smuggle physical contraband into Canada.
[56] Whether a search or questioning is routine or not is a critical line of demarcation going back to Simmons. The same line is also critical in determining whether there is detention at the border: see Dehghani, at pp. 1071-1074 (paras. 36-43); Jones, at paras. 31-33. Searches of luggage are routine, as that term has been used in the case law.
[57] Routine search or routine questioning does not require grounds and has not been constitutionalized. A search of a purse, a search of an individual’s pockets, and a search of a vehicle are all routine at a border crossing: see R. v. Nagle, 2012 BCCA 373, 97 C.R. (6th) 346 (B.C.C.A.), at para. 75; R. v. Hudson (2005), 2005 47233 (ON CA), 77 O.R. (3d) 561 (Ont. C.A.), at para 38; R. v. Sekhon, 2009 BCCA 187, 67 C.R. (6th) 257 (B.C. C.A.), at paras. 74-75. Even an x-ray of luggage is routine: R. v. Sinclair, 2017 ONCA 287 (Ont. C.A.), at para. 6.
[58] There are cases which hold that digital searches at the border are routine searches as well: R. v. Zhang, 2013 ONSC 356, [2013] O.J. No 233 (Ont. S.C.); R. v. Leask, 2008 ONCJ 25 (Ont. Ct. Jus.); R. v. Whittaker, 2010 NBJ No 332 (N.B. Prov. Ct.); R. v. Mozo, 2010 N.J. No. 445 (Prov. Ct.); R. v. Buss, [2014] B.C.J. 345 (Prov. Ct.). However, these cases were all pre-Fearon and did not involve constitutional challenges to the statutory source of the power to search as was the case here.
[59] On the other side of the line, if the search is not routine, an accused is detained, the right to counsel is triggered, and a search must be supported by grounds. We know from Simmons that an example of searches which are not routine are strip searches and body cavity searches. As mentioned, these two examples are, however, of limited assistance in determining the issue in this case. The informational privacy in a personal digital device cannot be equated to a body search.
[60] The constitutional attack on s. 99(1)(a) as applied to a personal digital device is premised on the confluence of three factors: (1) There is no legal threshold governing when a search into a personal digital device is justified; (2) The potential privacy interests residing in a personal digital device are of a high echelon in the privacy continuum. A thorough examination of such a device could be used to construct an extraordinarily detailed and accurate portrait of the owner; and (3) On the face of it, the search of a personal digital device could be of unlimited sweep and potentially excavate every area of the personal digital device and virtually every feature and characteristic of the life of its user.
[61] It is argued that digital devices are rarely examined by the CBSA. For example, in 2019, 97.4 million travellers were processed, and digital devices were only examined in less than .012% of those instances. The total travellers whose digital devices were searched in this time period were around 11,000.
[62] The fact is, however, that the CBSA maintains the power to examine digital devices. Justice Cromwell held in Fearon at para. 54,
… we must keep in mind that the real issue is the potentially broad invasion of privacy that may, but not inevitably will, result from law enforcement searches of cell phones. [Emphasis in original.]
[63] The same holds true for the examination of digital devices itself. The power exists and can be employed when deemed appropriate.
[64] In summary, I agree with “Crossing the line? The CBSA's Examination of Digital Devices at the Border” Office of the Privacy Commissioner of Canada (October 21, 2019) at para. 106:
Subsection 99(1)(a) of the Customs Act contains no threshold for when the CBSA (Canadian Border Services Agency) may examine goods including digital devices. the Customs Act was enacted long before the prevalence of portable digital devices. We are of the view that it does not reflect the realities of modern technology and electronic communications. It has no provisions applying specifically to digital devices, the electronic information stored within or accessible through these devices, or the power to search them.
[65] It was the lack of a legal threshold and the potentially limitless search of a digital device which ultimately doomed the legislation in Canfield. The Alberta Court of Appeal said at para. 75:
75 The appellants suggest a requirement for individualized suspicion that the search will reveal contraband. Recognizing that complex issues must be weighed in altering the law in this area, we decline to set a threshold requirement for the search of electronic devices at this time. Whether the appropriate threshold is reasonable suspicion, or something less than that having regard to the unique nature of the border, will have to be decided by Parliament and fleshed out in other cases. However, to the extent that s 99(1)(a) permits the unlimited search of personal electronic devices without any threshold requirement at all, it violates the protection against unreasonable search in s 8 of the Charter. [Emphasis added.]
[66] The PPSC argues that because the border authorities are performing a regulatory function, their search power should be looked at in a different light: Martineau v. Canada (Minister of National Revenue), 2004 SCC 81, [2004] 3 S.C.R. 737 (S.C.C.), at paras. 22-27; Thomson Newspapers Ltd. v. Canada, 1990 135 (SCC), [1990] 1 S.C.R. 425 (S.C.C.), at pp. 505-07 (paras. 126-27). In this instance, I do not believe that the regulatory context alters the analysis. The value of personal privacy is jeopardized equally by a regulatory search for contraband as it would be by a search for evidence of a criminal offence.
[67] Although it was only touched on briefly in this application, the American law in this area is worth examining. Chief Justice Dickson relied upon it in Simmons (at p. 528, para. 48). Like our law, the law in the United States has long drawn a dichotomy at the border between routine and non-routine searches. Routine searches require no threshold; non-routine searches do. When it is a personal digital device being searched, a manual search is classified as routine while a forensic search is non-routine. Based on this dividing line, manual searches of electronic devices do not require that a threshold for the search be met: see Alasaad v. Mayorkas (2021), 988 F.3d 8 (1st Circ.); U.S. v. Ickes (2005), 393 F.3d 501 (4th Circ.); U.S. v. Cotterman (2013), 709 F.3d 952 (9th Circ.); U.S. v. Kolsuz (2018), 890 F.3d 133 (4th Circ.); U.S. v. Arnold (2008), 890 F.3d 133 (4th Circ.).
[68] One exception to this position is U.S. v. Cano (2019), 934 F.3d 1002 (9th Circ.), where it was held that, although the initial manual search was legitimate, in a second manual search the officer recorded phone numbers and took pictures of a message that was received after the accused arrived at the border. These actions were no longer routine and were not within the border exception. The evidence was suppressed.
[69] With respect, I cannot agree with the general American position characterizing what is routine and what is not in the search of a personal digital device. There is no doubt that a forensic examination will be more exhaustive than a manual search could ever be. It will also take much more time and will be conducted off-site. Drawing the line at a forensic search is a convenient line of demarcation. The potential to subvert personal privacy is greater. But a manual search can also tread on the full gamut of privacy interests inherent in a personal digital device. A manual search may not be as thorough an investigative tool, but an extensive manual search has almost an equal potential to dredge up private information as does a forensic examination.
[70] It is true that the line must be drawn somewhere. Although the American position is rational in the sense that a forensic search will always be more intrusive than a manual search, a thorough manual search as took place in Mr. Pike’s case is not so different from a constitutional perspective. In my view, drawing the line at a forensic search, although easy and clear, is artificial and insufficiently sensitive to protect individual privacy.
[71] While a cursory search of a personal digital device may be permissible, we are not talking about cursory searches here. I agree with the Alberta Court of Appeal in Canfield that 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.
[72] Case law from the Supreme Court stresses that the concept of a reasonable expectation of privacy is a normative standard. In Spencer, Justice Cromwell said at para. 18:
Thus, while the analysis is sensitive to the factual context, it is inevitably “laden with value judgments which are made from the independent perspective of the reasonable and informed person who is concerned about the long-term consequences of government action for the protection of privacy”: Patrick, at para. 14; see also R. v. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211 (S.C.C.), at para. 34, and R. v. Ward, at paras. 81-85.
[73] The leading cases such as Simmons and Jones commonly refer to routine searches as “accepted” and “reasonably expected” by travellers, and having no stigma attached to them: see Simmons, at pp. 528 and 534-35 (paras. 49 and 65; Jones, at para. 30; R. v. Jacques, 1996 174 (SCC), [1996] 3 S.C.R. 312 (S.C.C.), at para. 18. This language is indicative of the frequent application of a normative perspective in this area. Caution ought to be exercised with normative standards as a judge’s articulation of them can be based on nothing more than her or his personal predilections. Nonetheless, in my best view of the matter, reinforced with the judgment in Vu and Fearon, Canadians are not willing to tolerate a full search of their personal device, undertaken without grounds of any kind and with no legislative restrictions on the areas that can be examined.
[74] In evaluating the content of the normative standard, it must first be observed that cell phones and computers are ubiquitous. As outlined in Canfield at para. 28:
In 1997, almost a decade after Simmons was released, only 22% of Canadian households had a cell phone for personal use; by 2004 that number had increased to 59%. This was prior to the release of the iPhone in 2007, and the advent of smartphones. In January 2019, there were approximately 28 million mobile internet users in Canada. In January 2020, 96% of Canada’s population had a mobile connection and 94% used the internet. Of those who use the internet, 89% own a smartphone, 85% own a laptop or desktop computer, and 55% own a tablet device. [Footnotes omitted.]
[75] Possession of a digital device is not truly a matter of free choice nor is carrying it over the border. It is difficult for many of us to conduct our work or home lives without computers and cell phones. They have become a necessary appendage—for better of for worse—and have fully ingratiated themselves into our lives. We cannot live without them. In light of their importance, in my view Canadians would never countenance deeply private information resident on digital devices being vulnerable to random, standardless, wholesale investigation by the state.
VII. is a threshold CONSTITUTIONALLY necessary?
[76] The concern that individuals will bring contraband into Canada on their phones and computers is alarming and requires an effective response. But some threshold to search is necessary. I need not decide here what threshold level is ultimately appropriate. Most likely, reasonable grounds are unnecessary and would prove too high a threshold to properly protect Canadian security. As Justice Dickson said in Hunter v. Southam (at p. 168 or para. 43), and it applies fully to the border context:
43 Where the state’s interest is not simply law enforcement as, for instance, where state security is involved, or where the individual’s interest is not simply his expectation of privacy as, for instance, when the search threatens his bodily integrity, the relevant standard might well be a different one [than reasonable grounds].
[77] Reasonable suspicion has been held to meet constitutional requirements in other contexts and would impose a standard protective of the public interest at the border: R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456 (S.C.C.), at paras. 21, 25, 75-76; R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220 (S.C.C.), at paras. 31-32; R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250 (S.C.C.), at paras. 71-73.
[78] I do not agree with the PPSC that reasonable suspicion is a “rigorous standard”. Dissenting in MacKenzie, Justice LeBel in a comment with which the majority did not disagree, referred to reasonable suspicion as “a relatively low standard … which allows police considerable latitude”: at para. 95. For the majority, Justice Moldaver said at para. 72:
[T]he test for reasonable suspicion will not be stymied when the factors which give rise to it are supportive of an innocent explanation. We are looking here at possibilities, not probabilities. Are the facts objectively indicative of the possibility of criminal behaviour in light of the totality of the circumstances? If so, the objective component of the test will have been met. If not, the inquiry is at an end. [Emphasis in original.]
[79] Reasonable possibility, synonymous with reasonable suspicion, is not an overly onerous threshold: R. v. Stairs, 2022 SCC 11 (S.C.C.) at para. 68; R. v. Darlington, 2011 ONSC 2776 (Ont. S.C.J.) at para. 75(11). Reasonable suspicion thresholds are commonly used in other Customs Act search provisions. In s. 99(l)(b), where the subject is imported mail, the standard for search is “suspects on reasonable grounds”. This same standard is used for: exported mail (s. 99(1)(c.1)); an alleged error made in a tariff classification (s. 99(l)(d)); origin claimed with respect to origin of goods (s. 99(l)(d.l)); contravention of the Act or regulations (s. 99(l)(e)); and the right to stop, board and search any conveyance (s. 99(l)(f)).
[80] As mentioned above, Denis Vinette, Vice President of the Travelers Branch of CBSA, testified on this hearing, as he did in Canfield. He provided an affidavit and was cross-examined with respect to the operations and policies of the agency. He said in his affidavit that a no-threshold standard was necessary for officials to effectively protect the border:
If the standard of RGTS [reasonable grounds to suspect] were to be applied to digital device exams, it would often be very difficult to articulate appropriate indicators, and more specifically identify particularized contraventions, to support examination of a digital device. If BSOs cannot reach the threshold to initiate examinations of digital devices, it would negatively impact border control and integrity due to a decrease in examinations, and therefore, interceptions of prohibited materials.
The CBSA is particularly concerned that if a legal threshold of RGTS was imposed, circumstances may exist where an officer had identified anomalies or other indicators of non-compliance but would be unable to pinpoint reasonable suspicion for a particularized contravention based on factors individual to this specific traveller. This means that the officer would not have the means to further advance the examination to that threshold.
[81] The evidence with respect to the search of Mr. Pike, although anecdotal, convincingly belied this assertion. BSO Grama asserted repeatedly in his evidence that at no time did he have reasonable suspicion of contraband being present while searching Mr. Pike’s 11 devices over a fairly lengthy period of time. However, despite this denial, the record is clear that there were reasonable grounds to suspect that Mr. Pike had child pornography on his digital devices.
[82] Before the search commenced, BSO Grama knew Mr. Pike had been sentenced to 15 years for making child pornography. He had served seven and a half years. Mr. Pike appeared nervous. BSO Grama knew Mr. Pike was coming back from travelling to countries notorious for sexual tourism. He was a single male travelling alone. BSO Grama knew Mr. Pike had been a teacher in Canada but that his licence had been revoked. Lastly, Mr. Pike possessed 14 digital devices.
[83] There is every possibility that these factors were enough in themselves for reasonable suspicion. I would note parenthetically that the criminal record—despite its seriousness—was not, in itself, enough to demonstrate propensity to commit another correlated offence so as to meet a reasonable suspicion threshold. Otherwise, everyone with a criminal record could be stopped and investigated based on reputation alone, an unpalatable and unreasonable conclusion: R. v. Debot, 1989 13 (SCC), [1989] 2 S.C.R. 1140, 52 C.C.C. (3d) 193 (S.C.C.) per Wilson J., at pp. 1169-70 (paras. 63-65). But Mr. Pike’s record was a very important factor, which together with the observations made by BSO Grama, led to suspicions against Mr. Pike.
[84] The aspect which elevated the evidence and made it unquestionable was that Mr. Pike lied to BSO Grama about facts going directly to the possession of child pornography. Upon initial questioning, Mr. Pike had said he was teaching adults while in Indonesia and soon after added that he was teaching young people too. In his luggage, BSO Grama found a white wig like a clown would wear. Mr. Pike said it was for dressing up like a crazy person to amuse children. Also customs officials found soon afterwards in his luggage, cards from children addressed to Mr. Pike. BSO Grama then confronted Mr. Pike and Mr. Pike admitted he was teaching children in the seven-year-old age group. Quite reasonably, BSO Grama considered the change from teaching adults to teaching seven-year-old children a deliberate falsehood.
[85] It is indisputable that the totality of circumstances led to a reasonable suspicion that Mr. Pike was in possession of child pornography. If there was any doubt before, his lie attempting to conceal that he was teaching seven-year-old children clinched it. From this anecdote with respect to Mr. Pike, there is a real concern that the CBSA is overstating the hinderance to a search posed by a legal threshold.
[86] In my view, skepticism is the appropriate reaction to an assertion by law enforcement that a search threshold will stymie investigations. Naturally, law enforcement officials would prefer not to have legislative obstacles regulating their ability to search. They would be more effective and productive without them. But there would be a cost to individual rights and to liberty.
[87] The absence of a threshold for a regular s. 99(1)(a) search is an exceptional circumstance justified by the national interest and the consequent lower expectation of privacy at the border. Searching without meeting an initial threshold is virtually unheard of in the law. The unique border context justifies a no-threshold search. However, that changes when a personal digital device is the subject of the search.
VIII. DO THE CBSA POLICIES SAVE THE LEGISLATION?
[88] The policy directives incumbent on customs officials are in my view insufficient to provide the necessary assurance that a digital device search is being conducted with the appropriate respect for personal privacy. The directives do not have the force of law. Examinations of digital devices are not to be conducted “as a matter of course [and]… should only occur where there is a multiplicity of indicators suggesting evidence of a contravention …” This policy is inherently vague and gives great latitude to the officer. An “indicator” is “a single piece of information, trend, abnormality, or inconsistency that when added to other information or data raises a concern to an officer about the threat presented by a traveller or shipment.” An indicator can be as minor as the observation that the subject is nervous. In Mr. Pike’s case, he was tapping his fingers on the desk at one point. Furthermore, for digital devices, a multiplicity of indicators is required but in cross-examination Mr. Vinette appeared to say that this could mean as few as two. The policy in this regard, Mr. Vinette was at pains to make clear, is not meant to impose a legal threshold. The result, in my view, is to grant to BSOs a virtually unfettered discretion to search digital devices.
[89] A passage in the seminal judgment of Dickson J. in Hunter v. Southam is important. The Federal Court of Appeal had held in a previous case that a member of the Restrictive Trade Practices Commission did not have to act judicially in authorizing entry or search. Justice Dickson said (Carswell),
39 As Prowse J.A. pointed out, if the powers of a Commission member are as the Federal Court of Appeal found them to be, then it follows that the decision of the Director in the course of an inquiry to exercise his powers of entry, search and seizure is effectively unreviewable. The extent of the privacy of the individual would be left to the discretion of the Director. A provision authorizing such an unreviewable power would clearly be inconsistent with s.8 of the Charter.
40 Assuming, arguendo, that the Federal Court of Appeal was wrong, and the member is authorized, or even required, to satisfy himself as to (1) the legality of the enquiry and (2) the reasonableness of the Director’s belief that there may be evidence relevant to the matters being inquired into, would that remove the inconsistency with s.8?
41 To read ss.10(1) and 10(3) as simply allowing the authorizing party to satisfy himself on these questions, without requiring him to do so, would in my view be clearly inadequate. Such an amorphous standard cannot provide a meaningful criterion for securing the right guaranteed by s.8. The location of the constitutional balance between a justifiable expectation of privacy and the legitimate needs of the state cannot depend on the subjective appreciation of individual adjudicators. Some objective standard must be established.
[Italics Emphasis in Original; Bold Emphasis Added]
[90] The Supreme Court of Canada has rejected arguments in the past that discretion can be relied upon to ensure procedural and substantive fairness. In R. v. Smith, 1987 64 (SCC), [1987] 1 S.C.R. 1045, 34 C.C.C. (3d) 97, 1987 CarswellBC 198 (S.C.C.), the Court considered the constitutional validity of the mandatory minimum punishment, seven years, for importing even a minimal amount of marijuana. It was argued that prosecutorial discretion would mitigate the gross disproportionality of punishment by not charging the offence of importing in cases of small amounts of drugs. Justice Lamer (as he then was), rejected this argument at pp. 1078-79 (Carswell, paras. 68-69):
In its factum, the Crown alleged that such eventual violations could be, and are in fact, avoided through the proper use of prosecutorial discretion to charge for a lesser offence.
In my view the section cannot be salvaged by relying on the discretion of the prosecution not to apply the law in those cases where, in the opinion of the prosecution, its application would be a violation of the Charter. To do so would be to disregard totally s. 52 of the Constitution Act, 1982 which provides that any law which is inconsistent with the Constitution is of no force or effect to the extent of the inconsistency and the courts are duty bound to make that pronouncement, not to delegate the avoidance of a violation to the prosecution or to anyone else for that matter. [Emphasis added.]
[91] The Smith case and the case of R. v. Bain, 1992 111 (SCC), [1992] 1 S.C.R. 91, 10 C.R. (4th) 257, (S.C.C.) at pp. 155-56 (paras. 63-64) involved prosecutorial discretion. In those instances, there was a quasi-judicial duty of fairness incumbent on the Crown. Even with this, the Supreme Court was concerned that in the to-and-fro of adversarial combat, it would be unwise to put full trust in prosecutorial fairness and objectivity. In the case of a law enforcement officer, the relationship with an accused is purely adversarial. The protection of individual privacy in a digital device cannot be left to CBSA policies and optimism that officers will adhere to those policies.
IX. CAN Limitations on Personal Digital Device Searches Adequately Protect Privacy Even Without a Threshold Requirement?
[92] In the context of a search conducted without a governing legal threshold, the question arises whether circumscribing the extent of a search by imposing a judge-made rule might redeem s. 99(1)(a) and render its use to search personal devices constitutional. Following along the path cut by Vu and Fearon, the possibility of confining the search of a digital device may ensure that the use of s. 99(1)(a) by customs officials does not violate s. 8 of the Charter. In Vu, Justice Cromwell imposed a requirement for specific authorization in a search warrant to search a digital device but declined to require computer search protocols in warrants. The manner of search need not always be specified in advance. He pointed out that it is difficult to predict where relevant files will be found on a computer: at paras. 57-58. The common law requirement that a search be carried out in a reasonable manner imposes a control on law enforcement to ensure they do not search irrelevant folders or files.
[93] The reasons in Fearon are particularly important for present purposes. Justice Cromwell held at para. 54:
[N]ot every search is inevitably a significant intrusion. Suppose, for example, that in the course of the search in this case, the police had looked only at the unsent text message and the photo of the hand gun. The invasion of privacy in those circumstances would, in my view, be minimal. So we must keep in mind that the real issue is the potentially broad invasion of privacy that may, but not inevitably will, result from law enforcement searches of cell phones.
[94] Justice Cromwell went on to hold that the common law rule that a search must be truly incidental to arrest and reasonably related to the arrest imposes a meaningful limit on search of a cell phone. However, more was required: Fearon, at paras. 57-58. Justice Cromwell set out a framework emphasizing that a digital device can only be searched if it was truly incidental to arrest together with additional requirements: (1) It was done to protect the police, the accused, or the public, or was to preserve evidence, or was to discover evidence that required prompt action; (2) The nature and the extent of the search were tailored to the purpose of the search; and (3) The police took detailed notes of what they have examined on the device and how it was searched: Fearon, at para. 83.
[95] In the same way, it should be asked whether a carefully tailored search could be conducted at the border in a way to ensure compliance with s. 8 of the Charter. In Canfield, the Court struggled with this issue but ultimately found that it was an inadequate measure to protect individual privacy. It was held:
76 We hasten to add that not all searches of personal electronic devices are equal. As was noted in Vu at para 63, it is neither possible nor desirable “to create a regime that applies to all computers or cellular telephones that police come across in their investigations, regardless of context”.
79 We do not say that the limitations enunciated in Fearon should all be adopted in border searches; the unique context of the border and the purpose of border searches must inform the approach taken. However, there are similarities between the two cases. Although an unlimited and suspicion-less search of the contents of a personal electronic device would breach the Charter, we recognize that some of the information commonly stored on cell phones and other devices must be made available to border agents as part of the routine screening of passengers. For example, and without setting out an exhaustive list, we note that receipts and other information relating to the value of imported goods, as well as travel related documents, are an essential part of routine screening. The review of such items on a personal electronic device during a routine screening would not constitute an unreasonable search under s 8.
[96] The evidence with respect to searching Mr. Pike and Mr. Scott’s devices demonstrates that these searches were not cursory or casual. In Mr. Pike’s case, BSO Grama conducted a wholesale search of the 11 devices over more than two hours, a search that cannot be reconstructed as he failed to follow CBSA policy to record the paths through the device which he took. With Mr. Scott, the testimony was that the desktop was examined as well as other areas. The desktop is the portal to a vast store of the computer’s data. The Applicants argue this type of search is a violation of s. 8, as it goes well beyond simply asking a traveller to show a receipt or other document on their phone. In those circumstances, the customs officer is not conducting the search himself and the search is very narrowly focussed, not wide-ranging.
[97] Rules could be imposed, like in Fearon, to stipulate that the search of a personal digital device must be tailored to its purpose. A judge-made rule could restrict customs officials’ conduct in searching computers and cell phones. If looking for child pornography, it could be held that only those digital areas in which photos would likely be found ought to be permitted. On a computer, that would be the pictures folder. The evidence on this application was that this is already the method required following the internal policies of the CBSA. There was no evidence led on this application to outline how practical that type of restriction would be in practice. Judicial notice can be taken of the fact that photos can be stored in folders other than in pictures. There is a good question of whether it is possible to confine a computer search to specific areas. Rocks may have to be over-turned to see what is under them. A manual search cannot be surgical; some files will be looked at that do not and could not house child pornography.
[98] There is a larger problem. The restrictions developed by Justice Cromwell in Fearon were in a different context. In a search incident to arrest, a lawful arrest helps to prevent an unreasonable search. That is, for the search to be legitimate, the arrest itself must be lawful and supported by reasonable grounds: R. v. Caslake, 1998 838 (SCC), [1998] 1 S.C.R. 51, 13 C.R. (5th) 1 (S.C.C.), at para. 13. The first step is a lawful arrest; the second is that the search incident to arrest must be reasonably related to the underlying purpose of the arrest: Fearon, at paras. 22-25. It was upon these two preconditions that Justice Cromwell grafted the additional requirements restricting search incident to arrest of a cell phone.
[99] At the border, the safeguards established by the presence of reasonable grounds for arrest anchoring the search are not present under Section 99(1)(a). This leaves no control mechanism and no initial governing threshold. Furthermore, the means used in Fearon of confining the search within constitutional bounds are not available. One of the main criterion does not make sense outside the Fearon context: i.e. the search must be done to protect the police, the accused, or the public, or to preserve evidence, or to discover evidence that required prompt action.
[100] In conclusion, taking a Fearon type approach to confine and channel a search of personal digital devices cannot be transplanted to the border context. It cannot remedy the absence of a threshold standard.
X. The Formation of Standards is Best Left to Parliament
[101] In approaching the question of an appropriate threshold, while at the same time circumscribing the extent of a search, the matter is probably better left to Parliament. Justice LaForest in Dyment wrote at p. 438 (para. 36):
In sensitive areas like this, it is important in the interests of law enforcement that there be clear rules for the guidance of police conduct, so as to maintain the support of the citizenry for law enforcement authorities. It is also important for them to know precisely how far they should go for their own protection and guidance. As the Law Reform Commission of Canada states in its report 25, Obtaining Forensic Evidence: Investigative Procedures in Respect of the Person (1985), at p. 1:
Besides protecting those individual interests that are directly threatened by the spectre of unchecked state power and unfettered police discretion, the creation of legal rules is necessary to provide the police with adequate guidance as to how they should conduct criminal investigations; and thereby to ensure that such investigations conform to the standards set by the Canadian Charter of Rights and Freedoms.
[102] The words of Justice LeBel from Kang-Brown, at para. 15, are similar,
15 In determining where the proper balance lies between the protection of privacy and effective law enforcement, the courts will be hampered by the fact that little is known about investigative techniques using sniffer dogs. Indeed, the record remains singularly bereft of useful information about sniffer dogs. … Despite this inadequate record, this Court is nonetheless being asked to curtail Charter rights for fear of leaving a void in the law and interfering with the use of a fairly widespread police investigative technique. The Court would create a new common law rule on the basis of little more than unverified and, for us in this appeal, unverifiable assumptions.
[103] One of the opinions in the American jurisprudence strongly advocated for legislative rather than judicial intervention as well: U.S. v. Kolsuz, 152-153. Parliament in my view is in a much better position to design a regime for the search of personal digital devices than is a judge. There are technical aspects of a digital search which, not surprisingly, were not elucidated on this application. Furthermore, if there is a threshold to be set, it should be set by Parliament not by a court.
[104] It appears Parliament is moving towards enacting legislation to fill the gap. I was advised two days ago, on April 12, 2022, that legislation was tabled on March 31, 2022 as Bill S-7 and has received first reading in the Senate (https://www.parl.ca/DocumentViewer/en/44-1/bill/S-7/first-reading). A threshold for a warrantless search of digital devices of a “reasonable concern” has been proposed.
XI. SECTION 1 OF THE CHARTER: IS SECTION 99(1)(A) JUSTIFIED AS A REASONABLE LIMIT PRESCRIBED BY LAW IN A FREE AND DEMOCRATIC SOCIETY?
[105] I am substantially in agreement with the reasons in Canfield with respect to the s. 1 analysis and will not reiterate them in detail here. The s. 1 criteria was restated recently in Frank v. Canada (Attorney General), 2019 SCC 1, [2019] 1 S.C.R. 3 (S.C.C.), at para 38:
Two central criteria must be met for a limit on a Charter right to be justified under s. 1. First, the objective of the measure must be pressing and substantial in order to justify a limit on a Charter right. … Second, the means by which the objective is furthered must be proportionate. The proportionality inquiry comprises three components: (i) rational connection to the objective, (ii) minimal impairment of the right, and (iii) proportionality between the effects of the measure (including a balancing of its salutary and deleterious effects) and the stated legislative objective (Oakes, at pp. 138-39; Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, [2015] 1 S.C.R. 3, at para. 139; K.R.J., at para. 58). The proportionality inquiry is both normative and contextual, and requires that courts balance the interests of society with those of individuals and groups (K.R.J., at para. 58; Oakes, at p. 139).
A. Pressing and Substantial Objective
[106] The Applicants take no issue with the pressing and substantial objective of policing Canada’s borders and regulating who and what comes into the country. This is uncontroversial: Canfield, at paras. 83-85.
B. Proportionality
i. Rational Connection
[107] Section 99(1)(a) is unquestionably rationally connected to the objective of monitoring the importation of goods and people into Canada. In fact, it is the most efficacious way to achieve this objective: Canfield, at paras. 86-90. The Applicants concede as much.
ii. Minimal Impairment
[108] A measure must be closely tailored to the objective in order to ensure that a right is impaired no more than absolutely necessary. I agree with the opinion in Canfield that a reasonable suspicion threshold, used in other search provisions in the Customs Act, would be more protective of privacy. In the majority of cases, like Mr. Pike’s, this standard would not prevent customs officials from searching: Canfield, at paras. 91-102.
iii. Balancing the Salutary and Deleterious Effects
[109] Child pornography preys on the innocent, ruining young lives: R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45 (S.C.C.), at paras. 82-94. In this case, a statement of facts was filed and agreed to by all counsel. It reads in part:
The occurrence of child pornography offences continues to increase. Statistics Canada data for 2020 show that while many police-reported crimes declined during the pandemic, the rate of child pornography increased 23%. This follows a 47% increase in 2019 and follows the ongoing trend upwards since 2009.
Child pornography is inherently harmful. Each depiction is a permanent record of child sexual abuse, victimization, and exploitation. Some pedophiles will show children child pornography for the purpose of normalizing the sexual interaction between children and adults. The demand for child pornography puts children at risk. The victims of child pornography live with the additional trauma of knowing that the images of their abuse will exist forever and be consumed by more and more offenders.
Child pornography consumption fuels cognitive disorders which rationalize and normalize the sexual abuse and exploitation of children. It allows consumers of this material to believe that sexual activity with children is acceptable, that children desire sex with adults, and that the children involved are enjoying the acts depicted.
Some individuals will travel to countries where it is easier to meet children and abuse them sexually. Typically, these countries are more impoverished and may have law enforcement agencies that are not as aggressive in investigating these crimes or possess the technology to combat sex crimes against children.
[110] Furthermore, it is extremely troubling that child pornography can be concealed from law enforcement in the depths of a digital device. However, ultimately, I agree with the conclusion of Alberta Court of Appeal in Canfield, where it was said at para. 108:
108 But the deleterious effects to personal and digital privacy enabled by s 99(1)(a) are substantial, and provide compelling reasons to curtail unfettered search powers of electronic devices at the border. Under a broad and plenary power to search personal electronic devices, advances in technology may make mass surveillance at the border entirely possible in the near future: see Gerald Chan and Nader R Hasan, Digital Privacy: Criminal, Civil and Regulatory Litigation (Toronto: LexisNexis Canada, 2018) at 42. This prospect is disconcerting in light of the intimate biographical information stored on these devices and the personal data they generate.
iv. Prescribed by Law
[111] In my view, the limit is not “prescribed by law” as required by s. 1. In R. v. Therens, 1985 29 (SCC), [1985] 1 S.C.R. 613, 45 C.R. (3d) 97, 1985 CarswellSask 851 (S.C.C.), at p. 645 (Carswell, para. 60), Le Dain J. said:
The limit will be prescribed by law within the meaning of s. 1 if it is expressly provided for by statute or regulation, or results by necessary implication from the terms of a statute or regulation or from its operating requirements. The limit may also result from the application of a common law rule.
[112] Also see R. v. Hebert, 1990 118 (SCC), [1990] 2 S.C.R. 151, [1990] S.C.J. No. 64, 1990 CarswellYukon 7 (S.C.C.) Carswell, paras. 40-41 and Canfield, paras. 96, 97, 109
[113] As pointed out above, the CBSA policies do not have the force of law. Nor is there an implied limitation arising from statute or from a common law rule: R. v. Orbanski, 2005 SCC 37, [2005] 2 S.C.R. 3 (S.C.C.), at paras. 34-51. There is no limit prescribed by law.
[114] The breach of s. 8 of the Charter is not saved by s. 1.
XII. The Order to be Made
[115] For these reasons, s. 99(1)(a) of the Customs Act is of no force or effect under s. 52 of the Constitution Act, 1982 by reason of a breach of s. 8 of the Charter, but only in so far as Section 99(1)(a) applies to a search of personal digital devices.
[116] The Alberta Court of Appeal in Canfield initially suspended its declaration of invalidity for one year and then, upon application by the Crown, extended the suspension for an additional six months: R. v. Canfield, 2021 ABCA 352. The suspension is due to expire on April 28, 2022.
[117] I am now advised by Crown counsel that based on the first reading of Bill S-7, a new extension application was heard by the Alberta Court of Appeal on April 12, 2022. The decision was reserved.
[118] There was no argument at the hearing before me relating to the suspension of the declaration of invalidity, although the PPSC, without supporting reasons, stated in their factum that if the provision was found unconstitutional, the declaration should be suspended for one year.
[119] I would not accede to this request. I see no reason why the order should not be co-extensive with the order in Canfield. It makes little sense for the federal government to have an extra year in Ontario after the 18 months suspension in Alberta on precisely the same legislation and the same issue. If the Alberta Court of Appeal issues another extension, I would be inclined, subject to counsels’ submissions, to follow suit. I can be contacted if that occurs or if the government wishes to make additional submissions on this issue. For now, I suspend the declaration of invalidity to the day the Canfield order is currently due to expire, April 28, 2022.
D.E. HARRIS J.
Released: April 14, 2022
COURT FILE NO.: CR-21-657-00
DATE: 2022 04 14
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
JEREMY PIKE and DAVID SCOTT
Applicants
REASONS ON CONSTITUTIONAL CHALLENGE
D.E. HARRIS J.
Released: April 14, 2022
[^1] Despite finding breaches of ss. 8 and 10(b) of the Charter, the trial judge and the Alberta Court of Appeal declined to exclude the evidence in Canfield’s and his co-appellant Townsend’s case under s. 24(2) of the Charter. The appellants applied for leave to the Supreme Court of Canada. I am advised by the federal Crown that there was a Crown cross-application for leave to appeal the finding of unconstitutionality but that it depended on the appellants being granted leave on their application. As the appellants were denied leave, consequently, the Crown’s cross-application was dismissed as well.