Border Searches – How Truly Private Are Our Phones? - Ashley Fouad

Section 8 of the Canadian Charter of Rights and Freedoms (“the Charter”) states that “everyone has the right to be secure against unreasonable search and seizure”. The purpose of section 8 is to protect Canadians from unjustified searches before they happen, with the understanding that Canadians are entitled to a reasonable expectation of privacy, particularly in the context of state searches. The seminal Charter rights and search/privacy case of Hunter v Southam (“Hunter”) sets out the minimum requirements for protection from unreasonable searches to reflect our entitlement of dignity, integrity, and autonomy – Charter values must reflect this.

Standards for searches

Hunter established that Canadians have privacy rights in the face of government searches. Section 8 of the Charter was held to apply in situations where a claimant had a reasonable expectation of privacy in consideration of the totality of the circumstances and property. In Hunter, Justice Dickson, writing for the Supreme Court of Canada (“the Court”), hoped to establish the seriousness of searches and relatively strict requirements for obtaining a search by articulating the standard of reasonable and probable grounds. This standard reflects the requirement of a credibly based probability that a criminal action has more likely than not occurred or is in the process of occurring. It is a high standard and is objectively determinable by considering if a reasonable person will consider the grounds justifiable. Since Hunter, however, we have seen the courts expand ancillary powers and lower standards for searches. The 1988 Court case of R v Simmons (“Simmons”), which analyzed strip searches at the border, ruled that the “degree of privacy one reasonably expects is lower than most other situations”. One cannot have the same expectation of privacy at the border. It is a different animal altogether – there is a vital state interest in protecting state security and the entry of people and goods, hence why Simmons articulated a search power with lowered criteria from Hunter. Simmons acknowledged that the Canadian Border Security Agency (“the CBSA”) has broad search powers and set out three hierarchies of searches that one might encounter at a border:

• primary and secondary inspections (every traveler should expect to be faced with routine questions regarding travel and goods);

• strip and/or skin searches; and

• body or cavity searches.

Not unsurprisingly, the reasonable expectation of privacy goes up from no requirement of suspicion/little expectation of privacy for primary and secondary inspections to reasonable suspicion (still a departure from Hunter) for body or cavity searches. Our bodies are our own, even at a border, and require an establishment of suspicion prior to being searched.

Searching cellphones and electronics

The question I want to address here is to what degree are our phones “us” and would a search of our phones at a border be considered a routine search to be expected (as one might expect of their luggage or bag) or are our phones a figurative extension of our body, entitling us to a much higher degree of privacy and protection from searches?

Relatively recent decisions by the Court regarding electronics provide us with a framework of decisions. R v Morelli (2010) and R v Vu (2013) (“Vu”) both held that the searches of computers must be dealt with separately from general search warrants. Vu, in particular, found that accessing a computer is far from searching a cupboard or filing cabinet. Our computers now hold a vast scope of personal and private information, and if the police are able to access this on a general search warrant, this gives rise to huge privacy concerns. Vu set out that police can search a computer but are required to have specific and prior authorization that specifically allows them to search the contents of the computer.

The 2017 Court companion cases of R v Marakah (“Marakah”) and R v Jones (“Jones”) dealt with text messages and cellphones, though not in a border context. The cases, read in conjunction, established that individuals will have a reasonable expectation of privacy in text messages, both sent and received. Jones and Marakah set out that, to establish this expectation,

• one must have a direct interest in the subject matter of the search;

• there must be a subjective expectation of privacy in the subject matter; and

• the expectation of privacy must be objectively reasonable.

The question of whether a reasonable expectation of privacy exists may be explored by considering if the information in question is personal and private information about oneself, such as lifestyle or information that might violate bodily autonomy if discovered. The Court in Jones and in Marakah emphasized that people generally expect private electronic conversations to stay private and, as a result, people often discuss personal matters through their electronic devices. The Court also noted that “it is difficult to think of a type of conversation or communication that is capable of promising more privacy than text messaging”.

A higher standard for cell phone searches at the border is imposed in Alberta

Recently, in Alberta, R v Canfield (“Canfield”) considered all the above in regard to a search of Canfield’s cellphone at the international border, where the CBSA found images of child pornography. The constitutionality of the applicable Customs Act, which allows agents to search itinerant travelers, was challenged as was the level of privacy requirements set out in Simmons.

The Court of Appeal of Alberta (“the ABCA”) held the impugned section of the Customs Act to be invalid, as it applies to the border agents’ limitless power to search electronic devices, considered to be a primary or secondary search, as it currently does not imply any expectation of privacy in these circumstances. The impugned section failed anOakes analysis because the lack of expectation of privacy for personal electronic devices is not minimally impairing. To return to my above question, our phones and electronic devices are now very much considered “us”, requiring a similar search standard of suspicion to strip searches.

General Implications

Manitoba lawyer David Davis had a few things to say regarding the implications of these cases, and specifically Canfield, for Manitoba. Davis set out some recommendations (which are beyond the scope of this blawg) that, in summary, ask Canada to require that the searches of cell phones and personal electronic devices be held to the Hunter standard of reasonable and probable grounds. Further, Davis discussed a multitude of suggestions, from tracking searches and reporting the results to the privacy commissioner to privacy legislation in general and reconsideration of the Consumer Privacy Protection Act in light of Canfield and the acknowledgement of a new threshold for personal electronic devices. Authors and professors Jochelson and Ireland themselves discuss the necessity of bringing Hunter v Southam “back to the halls of justice” in order to protect our civil liberties.

Manitoba Implications

While Canfield is not binding in Manitoba (as Alberta jurisprudence), it is a significant decision that arguably will have a ripple effect in Manitoba. The contents of our cellphones (and Personal Electronic Devices) go to our biographical core, contain sensitive and vulnerable information about ourselves, and may be considered as an intrusion on personal privacy, not unlike (but not to the same degree as) a strip search. This alone should be sufficient to clearly articulate a standard for the searches of these devices and constitutionally protect the private contents of our phones.

The ABCA ordered that the impugned section of law be declared invalid with the constitutional remedy of a one-year suspension of invalidity to rectify the legislation. Though not binding, it will be interesting to see if Manitoba follows suit in order to avoid a similar case. Canfield was appealed to the Court in March 2021, where the application for leave to appeal was dismissed without reasons. It is unfortunate that the Court declined to comment on this required new threshold and set forth the standards for cases going forward. It is now likely that cases like this, in the absence of new legislation, will continue to be argued. Our phones will continue to evolve as an extension of “us”, and it is imperative that legislation equally evolve to reflect the nature of information and privacy expectations that we have of our devices.