Appeal Court Strikes Down Law On Searching Phones, Tablets And Laptops At Border
The law allowing Canadian border officers to search people’s personal devices is unconstitutional, Ontario’s top court has ruled, giving Parliament six months to come up with new legislation.
The Ontario Court of Appeal said in a 114-page decision released Friday that there’s a need for a higher threshold justifying a search of travellers’ phones, tablets and laptops, after concluding the current law violates the right to be free from unreasonable searches guaranteed by the Charter of Rights and Freedoms.
“Because the border is not a Charter-free zone, it is also not an almost-anything-goes zone for highly intrusive searches like digital device examinations,” wrote Chief Justice Michael Tulloch on behalf of a unanimous three-judge panel that included Justices Jonathon George and Patrick Monahan.
“The contents of these devices attract some of the strongest privacy interests known to law because they are a window into their users’ lifestyles, beliefs, interests, desires, relationships, finances, health, and much more.”
The law presently allows border officers to search devices as long as they are sincerely trying to find evidence of illegal activity — “the lowest possible standard to justify a search,” Tulloch wrote.
The top court found that instead, officers must have a “reasonable suspicion” — based on an objective set of facts in each case — that there is a possibility they will find evidence of violations before they search a person’s devices. This is the same, higher threshold used to justify strip searches at the border.
“This prevents border officers from relying on mere hunches, intuition, and uncorroborated tips of unknown reliability,” Tulloch wrote.
It also guards against discrimination at the border, the chief justice wrote, as it requires facts showing the reasonable possibility of a crime justifying a search, “not racial stereotypes.”
Tulloch noted that the law “mostly misses the mark” due to its current low threshold. He pointed out that approximately 62 per cent of the over 31,000 searches of digital devices conducted by the Canada Border Services Agency between 2017 and 2020 found no evidence of illegal activity.
“This significant invasion of the privacy of many innocent travellers is a strong sign that the law is unreasonable,” he said.
While declaring the law unconstitutional, the top court suspended its finding for six months to give Parliament time to come up with new legislation. A spokesperson for Public Safety Minister Dominic LeBlanc referred the Star on Friday to the Canada Border Services Agency.
The CBSA told the Star Friday evening that it is reviewing the decision, saying in a statement that “appropriate examinations of devices are essential to a high rate of resultant uncovering customs and/or immigration-related contraventions,” and that its officers conduct secondary inspections of travelers in a courteous and respectful manner.
The Canadian Civil Liberties Association, which intervened in the case, applauded Friday’s decision.
“Parliament must legislate a stringent standard with clear safeguards for the state to search an electronic device at the border,” said Shakir Rahim, director of the CCLA’s criminal justice program. “This reflects the fact that electronic devices are a trove of our most personal, intimate and sensitive information.”
The judges were hearing appeals involving two men arrested on child pornography charges following searches of their devices by border officers in 2020. While the judges found the law to be unconstitutional, that finding did not help the two men before them.
Jeremy Pike had returned to Canada with 14 digital devices after teaching seven-year-old boys in Indonesia. He had prior convictions for sexually abusing young boys, which had led to his teaching licence in Canada being revoked. A border officer found child pornography on one of Pike’s devices. Peel police later found over 1,600 images depicting the sexual abuse and exploitation of children on two of Pike’s devices, the top court said.
Superior Court Justice David E. Harris acquitted Pike after finding his rights had been violated and excluding the evidence. But the Court of Appeal overturned that decision and ordered a new trial. Tulloch noted that the evidence against Pike was “highly reliable,” and there is a strong societal interest in Pike’s prosecution and in holding Canadians accountable for allegedly sexually exploiting children overseas.
The second man, retired business executive David Scott, was arrested after border officers found child pornography among his 13 digital devices when he returned to Canada. Police later found about 3,000 text, image, and video files showing the sexual abuse of children.
In his case, Harris admitted the evidence and convicted him, which was upheld by the top court. But Tulloch found it was wrong of Harris to sentence Scott to 23 months of house arrest. A more appropriate sentence would have been three years in prison, Tulloch said, who nonetheless decided against sending Scott to prison now given he has already served more than half of his house arrest.
“These offences against children are abhorrent in nature and have lasting and widespread societal impact,” Tulloch said.
“By possessing recordings depicting the sexual abuse and exploitation of children over the course of three decades, Mr. Scott sexually abused children by invading their privacy, wounding their dignity, and causing them serious emotional harm. He shares culpability with those who produced the images depicting the victimization of children that he possessed on his digital devices.”
Cluued from The Star
