A law that allows border agents to search electric devices, including computers and phones, violates Canadians’ charter rights, Ontario’s top court has ruled, telling Parliament it needs to rewrite the law in six months.
The decision says the Customs Act “offends” that right, as it allows border agents to search “some of the most private information imaginable” based merely on suspicion.
“I conclude that the law infringes s. 8 of the Charter and is unconstitutional,” Tulloch wrote in the decision, 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 noted that 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 said.
“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 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 laws were being violated. The invasion of these innocent individuals’ privacy was a “strong sign” that the law was “unreasonable,” the justices wrote.
The justices’ decision involved an appeal to sentences handed out to two Canadians, Jeremy Pike and David Scott, whose devices were searched at the border and were found to be in possession of child pornography.
The two men challenged the constitutionality of the law.
“However, 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.
The court disagreed with a trial judge’s decision not to allow the content found on Pike’s devices to be used as evidence. It’s something the appeals court said “cannot stand.”
A new trial was ordered, granting the Crown’s appeal against Pike’s acquittal, and the content on the devices would be permitted as evidence, the appeals court said.
Evidence found on Scott’s devices had been allowed in the trial against him, and he was sentenced to 23 months of house arrest. The appeals justices said he should have received three years in jail for the crimes.
However, they declined to impose jail time on him at this time as he has already served more than half his sentence.
The appeals court dismissed Scott’s case against his conviction.