A law that allows border agents to search personal electronic devices, including computers and smartphones, violates Canadians’ charter rights, Ontario’s top court has ruled, telling Parliament it needs to rewrite the law in six months.
The decision says one section of the Customs Act “offends this basic guarantee.” It says section 99(1)(a) of the act allows border agents to search “some of the most private information imaginable on the lowest possible standard to justify a search,” based merely on suspicion “in the border officers’ own minds.”
The charter requires more, Tulloch wrote in the decision. “A reasonable search in this context requires a reasonable suspicion,” which means the suspicion must be based on facts indicating reasonable possibility officers will find evidence of law violations on the device, the chief justice said.
“I conclude that the law infringes s. 8 of the Charter and is unconstitutional,” Tulloch wrote, noting that the Crown failed to show that the law’s low requirement to justify a search was necessary, because a higher threshold is already in place for similar situations.
He also said a less restrictive alternative—requiring border agents to rely on facts that show travellers could be violating laws, as opposed to “good faith purpose”—“would not jeopardize its mandate.”
“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,” Tulloch wrote.
He further noted, “Reasonable suspicion requires border officers to rely on objective facts supporting a possibility of border violations that courts can independently scrutinize. This prevents border officers from relying on mere hunches, intuition, and uncorroborated tips of unknown reliability.”
The appeals court also noted that about 62 percent of the 31,579 searches of digital devices made by border agents between 2017 and 2020 found no evidence of any border law violations. The invasion of these innocent individuals’ privacy “is a strong sign that the law is unreasonable,” the decision said.
The appeal court’s decision relates to the case of two Canadians, Jeremy Pike and David Scott, whose devices were searched at the border and who were charged with possessing and importing child pornography. Pike was acquitted and Scott was sentenced to 23 months of house arrest.
The two men challenged the constitutionality of Section 99(1)(a) of the Customs Act, and Scott sought to appeal his conviction while the Crown sought to appeal Pike’s acquittal.
“The unconstitutionality of this law does not entitle Mr. Pike and Mr. Scott to acquittals on the serious crimes against children with which they were charged,” the court decision said.
Regarding Pike, Tulloch disagreed with the trial judge’s decision to disallow the content found on Pike’s devices to be used as evidence and to thus acquit him. Tulloch allowed the Crown’s appeal against Pike’s acquittal, admitted the evidence of child pornography found on Pike’s devices, and ordered a new trial on the pornography charges.
As for Scott, evidence found on his devices had been allowed in his trial. Tulloch not only dismissed his appeal of his conviction but also said Scott should have received three years in jail instead of 23 months’ house arrest.
“While the trial judge generally appreciated the seriousness of Mr. Scott’s crime, he overlooked the significant number of children Mr. Scott victimized and the three-decade duration of his offending,” Tulloch wrote.
However, Tulloch declined to impose jail time on Scott at this time, saying that he has already served more than half of his 23-month sentence and that he would likely have received parole by this time if he had received a three-year sentence.”
“This decision’s condemnation of possessing child pornography and guidance for future cases is sufficient to denounce and deter that crime,” Tulloch added.
