Warrantless Searches of Personal Electronic Devices and the Admissibility of Evidence: Constitutional Limits Under the Customs Act
Author: S.J.H.
Introduction
As society grows increasingly reliant on technology and digital systems, the use of personal electronic devices (PEDs) has become the primary means of storing personal data. While advances in technology have enhanced convenience in the digital age, they also raise complex legal challenges in criminal law and evidentiary rules governing searches and seizures at ports of entry.[i]
Travellers routinely find themselves subject to warrantless searches. In fact, “62% of the 31,579 digital device searches the [Canada Border Services] Agency [(CBSA)] conducted between 2017 and 2020 found no evidence of any border law violations.”[ii] This has raised significant constitutional concerns regarding the legitimacy of these searches. To what extent do travellers have a right to privacy? And how does s. 99(1)(a) of the Customs Act (the “Act”) violate the rights guaranteed under s. 8 of the Canadian Charter of Rights and Freedoms (the “Charter”), which protects individuals against unreasonable search or seizure?
While the CBSA is responsible for enforcing the Customs Act and seizing unlawful goods, it also has an obligation to uphold the constitutional rights guaranteed in the Charter. This is a principle affirmed by the Ontario Court of Appeal in the case of R v Pike.[iii]
Legislation: The Customs Act
The Act gives the CBSA officers the authority to search imported goods of travellers returning to Canada. Section 99(1)(a) of the Act states that an officer may “examine any goods that have been imported and open or cause to be opened any package or container of imported goods and take samples of imported goods in reasonable amounts.”[iv] According to s. 2(1) ‘goods’ are defined to include all “conveyances, animals and any document in any form.”[v] This interpretation naturally extends to PEDs and any files and documents they contain, regardless of their digital format.[vi]
R v Pike
Two travellers, Jeremy Pike and David Scott had their PEDs searched under s. 99(1)(a) of the Act and were both charged with possession and importation of child pornography.[vii] The trial judge found that the provision violated s. 8 of the Charter with respect to Mr. Pike, rendering the evidence against him inadmissible, while admitting the evidence against Mr. Scott. On appeal, the Ontario Court of Appeal agreed that the law was unconstitutional but admitted the evidence against Mr. Pike and dismissed Mr. Scott’s appeal, upholding his conviction.[viii]
While four issues were considered, this discussion will focus on two: (1) whether s. 99(1)(a) of the Customs Actviolated s. 8 of the Charter; and (2) whether the evidence obtained was admissible. This analysis will examine the court’s reasoning regarding the alleged s. 8 violation and the admissibility of the evidence obtained despite any such constitutional breach.[ix]
Does s. 99(1)(a) of the Customs Act violate s. 8 of the Charter?
Section 8 of the Charter protects individuals against unreasonable searches and seizures.[x] The court recognized the significant privacy interests of individuals from arbitrary and unreasonable violations by the state. It confirmed that the right to privacy is not limited to the private sphere but extends to “our bodies and in personal information about ourselves.”[xi] The court accepted that individuals have a reasonable expectation of privacy with respect to their PEDs as these contain “sensitive and confidential information concerning travellers’ lifestyles and personal choices.”[xii]
In R v Simmons, the Supreme Court of Canada (SCC) recognized that international travellers have a reduced expectation of privacy at the border.[xiii] As international travel involves significant regulatory concerns and the state has a strong interest in safeguarding the public and regulating the flow of goods, courts must balance these interests against the privacy rights of individuals.[xiv] While this reduced expectation of privacy acknowledges the regulatory interests of the state, it does not mean travellers’ privacy rights are non-existent; laws must still uphold the standards set out under s. 8 of the Charter.[xv]
Section 99(1)(a) of the Act authorizes searches under the “subjective good faith purpose, rather than the reasonable suspicion threshold that the Charter requires.”[xvi] This low threshold, coupled with the law’s unreliability and lack of oversight mechanisms, creates a significant risk of discrimination, perpetuates stereotypes, and disproportionately targets travellers from certain countries and backgrounds, causing undue privacy breaches for innocent travellers who have not violated any laws. Indeed, the reason why Mr. Pike and Mr. Scott were targeted by the CBSA was because “they arrived from countries that the Agency [(CBSA)] associates with drug trafficking and child sexual exploitation.”[xvii]
Taken together, the low subjective good-faith threshold, lack of oversight, unreliability of the law, and potential for perpetuating racism and stereotypes, renders s. 99(1)(a) of the Act presumptively unconstitutional. Given the state’s failure to justify the infringement under s. 1 of the Charter, the court held that s. 99(1)(a) of the Act violates s. 8 of the Charter,[xviii] and pursuant to s. 52(1) of the Constitution Act, 1982, is of no force or effect.[xix]
Is the Evidence Admissible Despite a Constitutional Breach?
Section 24(2) of the Charter, states that evidence obtained in a manner that breaches Charter rights shall be excluded if its admission would bring the administration of justice into disrepute.[xx] Whether evidence is admissible—despite a constitutional breach— requires a separate analysis. Courts must assess the Grant factors: (1) the severity of the Charter breach, (2) the impact of the violation on the accused’s Charter- protected rights, and (3) societal interest in trying the case on its merits.[xxi]
The Charter breach was deemed to be less serious as “officers were acting consistently with what they reasonably believed to be the law.”[xxii] CBSA officers were acting in good faith and in accordance with case law at the time that established such searches to be valid. Therefore, the Charter violation considering these circumstances is moderate. In addition, the reduced expectation of privacy for travellers at the border diminishes the severity of the Charter breach and its impact on the accused’s rights.[xxiii]
Finally, given that these offences involve the safety of children—a vulnerable population that society collectively agrees deserves protection from harm—they are considered highly serious. Moreover, Mr. Pike, a former teacher convicted of sexually abusing children and making child pornography, admitted to teaching children in countries frequently visited by individuals who exploit children sexually.[xxiv] This context underscores the need for the administration of justice to hold him
accountable.[xxv]
Failing to admit the evidence in these circumstances would frustrate public confidence and could bring the administration of justice into disrepute. Furthermore, because offences against children, particularly those of a sexual nature, profoundly affect both victims and society at large, there is a compelling societal interest in having these charges tried on their merits.[xxvi] Accordingly, the court concluded that the evidence was admissible despite the Charter breach, as its inclusion would not bring the administration of justice into disrepute.[xxvii]
Conclusion
The decision in Pike affirmed the strong privacy interests of travellers from arbitrary searches at the border. It acknowledged that the threshold for border searches is the reasonable standard outlined under s. 8 of the Charter. A lower standard would amount to a presumptive violation of this right. Laws governing searches must comply with the Charter, as privacy is constitutionally protected, though this presumption may be justified under s. 1 of the Charter as a reasonable limit. Despite a violation, evidence can still be admitted under s. 24(2) of the Charter if excluding such evidence would bring the administration of justice into disrepute. The court emphasized the need to balance individuals’ privacy against the State’s regulatory interests and public safety.[xxviii]
The future of border searches under the Customs Act remains precarious. Bill S-7, An Act to Amend the Customs Act and Preclearance Act, 2016, seeks to make appropriate changes to reflect the decisions in Canfield [xxix] and Pike, clarifying the objective reasonable suspicion standard for CBSA officers and potentially reducing unreasonable searches of innocent travellers.[xxx] However, as this is a decision of the Court of Appeal for Ontario, it is not binding on other jurisdictions, leaving the provision in full force and effect elsewhere and leaving it uncertain how Parliament will amend the law or how such changes will affect travellers’ privacy rights across Canada.
Endnotes:
[i] Department of Justice Canada, “Section 8 – Search and seizure” (last modified 14 July 2025), online: Department of Justice Canada <justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art8.html> [perma.cc/C6U4-YHNG].
[ii] R v Pike, 2024 ONCA 608 at para 64 [Pike], online: < https://canlii.ca/t/k67xc >.
[iii] Ibid.
[iv] Customs Act, RSC 1985, c 1(2nd Supp), s 99(1)(a), online: < https://canlii.ca/t/56v2l >.
[v] Ibid, s 2.
[vi] Pike, supra note ii at para 36.
[vii] Ibid at para 17.
[viii] Ibid at paras 4, 5.
[ix] Pike, supra note iii.
[x] 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, c11.
[xi] Pike, supra note ii at para 29.
[xii] Ibid at para 32.
[xiii] Ibid at para 50.
[xiv] Pike, supra note ii.
[xv] Ibid.
[xvi] Ibid at para 33.
[xvii] Ibid at para 65.
[xviii] Ibid at para 27.
[xix] Ibid at para 101, 103.
[xx] Canadian Charter of Rights and Freedoms, supra note xi, s 24(2).
[xxi] Pike, supra note ii at para 124.
[xxii] Ibid at para 127.
[xxiii] Ibid.
[xxiv] Ibid at para 132.
[xxv] Ibid at para 64.
[xxvi] Ibid.
[xxvii] Ibid at para 134.
[xxviii] Ibid at para 64.
[xxix] R v Canfield, 2020 ABCA 383, online: < https://canlii.ca/t/jb956>
[xxx] Pike, supra note ii at para 108.
