Evaluating the Constitutionality of the Customs Act and Admissibility of Electronic Evidence in R v Scott by N Ashford

Electronic devices contain a cache of information including an individual’s beliefs, relationships, and lifestyle. As technology continues to evolve and become increasingly intimate, the law has remained stagnant. This raises the question: To what extent is the privacy of these devices protected under the law?  This issue is addressed by the Ontario Court of Appeal in R v Scott[i] where Tulloch JA recognized that the threshold to obtain such sensitive information requires a higher standard of justification. While R v Scott addressed several issues, including the right to counsel and sentencing, this case analysis will focus on the breach of the appellant’s section 8 Charter rights by officers acting under section 99(1)(a) of the Customs Act to authorize the search of digital devices. It will also explore the impact on the admissibility of evidence obtained from these searches and the necessity of rules regarding electronics within the legislation.

R v Scott was heard alongside R v Pike[ii] by the Ontario Court of Appeal (ONCA) addressing the constitutionality of section 99(1)(a) of the Customs Act. Jeremy Pike and David Scott were both stopped at the border and their electronic devices were searched by border officers in accordance with the Customs Act. Evidence of child pornography was found on their devices, and they were subsequently arrested. The defendants challenged the constitutionality of the search arguing that it breached their right to be not be subjected to an unreasonable search.[iii]  The trial judge found that the search breached the defendants s.8 Charter rights to be free of unreasonable searches and seizures as they were unlawfully detained and forced to hand over their secured devices.[iv]  He refused to admit the evidence found on Pike’s devices as he determined the seriousness of the breach would bring the administration of justice into disrepute; however, because the officers followed proper procedure and acted in good faith, he allowed the information found on Scott’s devices and sentenced him to 23 months of house arrest.[v] The crown appealed Pike’s acquittal and sought a leave to appeal the sentence imposed on Scott, and Scott appealed his conviction.

Tulloch JA began his judgment by reviewing the standard of privacy for the search and seizure of electronic devices. The justification for border officers to search varies depending on the invasiveness of an individual’s privacy, divided into three general categories set out in Simmons[vi]: (1) routine questioning, searching belongings, and pat down searches which require a standard of ‘subjective good faith purpose” (2) strip searches which demand a standard of ‘reasonable suspicion” ; (3) body cavity searches which necessitate a greater unspecified degree of protection”.[vii] He found that the lack of legislative authority for the search of electronic devices resulted in ambiguity surrounding which of the categories the search should fall under.[viii] With no conclusive guidelines, travelers were left vulnerable to border officers acting on their interpretation of the law.  

Tulloch also noted that the authority to conduct searches was more flexible for border agents due to the heightened risk, allowing them to utilize a lower threshold to search a suspicious individual.[ix] If officials acted in “good faith” and the conduct was for a “border-related reason”,[x] they could search an individual without objection. Tulloch further found that the search of present-day devices should require a higher threshold than “subjective good faith”.[xi] This is an adjustment that was necessary to ensure that officers can no longer use only subjective suspicions when invading such an intimate level of privacy.

In his reasoning, Tulloch JA relied on the five Goodwin[xii] factors: intrusiveness, reliability, oversight mechanisms, and the law’s purpose and nature to find that the current threshold was unreasonable. First, he explains that the law’s intrusiveness in searching for an electronic device is not comparable to the search of luggage because electronic devices contain “an almost unlimited universe of information”.[xiii] Secondly, he noted a reliability concern because 62% of digital device searches from 2017 to 2020 found no evidence of any border violations and raised a real risk of racial discrimination.[xiv] Next, Tulloch JA stated that there was a lack of oversight, pointing to a low threshold that prohibits courts from verifying whether officers had a reasonable means to search and offers no effective remedies for innocent complainants.[xv] He concluded that the purpose of the search powers to protect public and national safety does not justify electronic devices being placed in the first category (“good faith” threshold) set out in Simmons.[xvi] Tulloch JA determined the law was more focused on physical contraband than electronic documents,[xvii] indicating that the scope of the law is broader and does not focus enough on electronic devices to warrant such an expansive search.

Despite the Charter breach, however, Tulloch JA decided that the evidence obtained was admissible.  The Court reviewed section 24(2) of the Charter which provides that evidence obtained in a manner that breaches Charter rights shall be excluded if its admission would bring the administration of justice into disrepute.  Tulloch JA decided against excluding the evidence after a careful balancing of the three Grant[xviii] factors. In particular, he decided that the trial judge had “overstated the seriousness of the Agency’s conduct and overlooked factors that reduce the impact of the Charter breaches on Mr. Pike and bolster society’s interest in a trial on the merits.”[xix] 

Although the illegally obtained evidence was ultimately admitted, this newly heightened threshold should set a precedent for future Charter tests involving the search of electronic devices. In R v Fearon, an officer acting in “good faith” was enough to admit evidence obtained on an electronic device due to the lack of clarity in the law and the impact of the Charter breach.[xx] However, as the standard for searching a device at the border rises to a need for reasonable suspicion, a breach must be given more weight and should result in a more detailed analysis.

The ONCA found that border officers must have reasonable suspicion, based on objective facts, that justify a reasonable possibility that evidence of border law violations will be found upon searching an electronic device. This decision is a much-needed step forward as technology continues to evolve and change faster than the legislation. The ONCA suspended the declaration of unconstitutionality for six months to allow Parliament to address the issue. This ruling will undoubtedly have an impact on the admissibility of evidence obtained from searches of electronic devices moving forward. The amount of intimate information stored on electronic devices is continuously increasing, meaning that the seriousness of the breach will need to evolve contemporaneously with their significance in society. We are in a period where technology is rapidly reshaping legal standards, and it is important that legislation develops to properly maintain authority without bringing the administration of justice into disrepute.

Endnotes

[i] R v Scott, 2024 ONCA 608.

[ii] R v Pike, 2024 ONCA 608.

[iii] Scott, supra note 1, at para 22.

[iv] Canadian Charter of Rights and Freedoms, s. 8, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

[v] Ibid at para 23.

[vi] R v Simmons, [1988] 2 SCR 495.

[vii] Scott, supra note 1, at paras 52-54.

[viii] Ibid at para 12.

[ix] Ibid at para 72.

[x] Ibid at para 52.

[xi] Ibid at para 58.

[xii] Goodwin v British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46.

[xiii] Scott, supra note 1, at para 61.

[xiv] Ibid at paras 64-65.

[xv] Ibid at paras 67-68.

[xvi] Ibid at para 70.

[xvii] Ibid at para 73.

[xviii] R v Grant, 2009 SCC 32.

[xix] Scott, supra note 1, at para 126.

[xx] Nicole O’Byrne, Adam Baker, and Adam Mihajlovic, “Ubi jus, ibi remedium: Section 24(2) of The Constitution Act, 1982”, Paper Presented at the Canadian Association of Provincial Court Judges annual conference, September 2022 at pg. 24-25.