Recently the Ontario Court of Appeal delivered a landmark ruling in R v. Pike, declaring that the practice of conducting random electronic searches at Canadian borders is unconstitutional. This decision has significant implications for the extent of border officers’ powers and the protection of personal privacy under Canadian law. Under Section 99(1)(a) of the Customs Act, RSC 1985, Canadian border officers have broad authority to inspect any goods that have been imported and open or cause to be opened any package or container of imported goods. This provision empowers officers to conduct searches without requiring specific grounds for suspicion or a reasonable limit on the scope of the search.
While this power is essential for enforcing border regulations and preventing illegal imports, its application to electronic devices—such as smartphones, laptops, and tablets—has raised serious privacy concerns. Electronic devices often contain vast amounts of personal information, including private communications, financial records, and sensitive data. In the case of Jeremy Pike and David Scott, both travelers had their electronic devices searched under Section 99(1)(a) of the Customs Act. During these searches, child pornography was discovered, leading to serious criminal charges against the individuals. Pike and Scott challenged the constitutionality of the searches conducted on their devices, arguing that the broad powers granted to border officers violated their right to privacy and protection against unreasonable search and seizure, as guaranteed by Article 8 of the Canadian Charter of Rights and Freedoms.
The Ontario Court of Appeal agreed with this argument, finding that the law’s lack of specific criteria for conducting searches was excessively broad and infringed upon constitutional protections. The court criticized the existing standard for conducting these searches as being too lenient, allowing officers to access highly private information based solely on a minimal threshold of suspicion. Despite finding Section 99(1)(a) unconstitutional, the Court of Appeal did not overturn the charges against Pike and Scott. The court noted that the trial court’s exclusion of evidence obtained from the searches was incorrect. It ruled that the border officers acted in good faith based on the law as it stood at the time and ordered a new trial where the evidence could be re-evaluated.
The court’s decision highlights a critical balance between law enforcement needs and individual privacy rights. While the ruling recognizes the need to safeguard constitutional rights, it also acknowledges the practical challenges faced by border officers in enforcing customs laws. This ruling follows a similar decision by the Court of Appeal of Alberta in R v. Canfield, which also found Section 99(1)(a) unconstitutional concerning searches of personal electronic devices. The Alberta court’s decision further underscored the need for legal reforms to address privacy concerns in the context of border searches. In response to these judicial challenges, Bill S-7, An Act to Amend the Customs Act and the Preclearance Act, 2016, was introduced in the Canadian Senate in 2022. The proposed legislation aims to address the constitutional issues identified by the courts by establishing a legal threshold for initiating searches of electronic devices. It also seeks to impose specific limitations on such investigations and create legally binding controls on the conduct of border officers. As of now, however, the bill remains pending and has not yet been enacted
