In R v. Pike[1] the Ontario Court of Appeal considered the expansive search power of Customs and Border officers under s. 99(1)(a) of the Customs Act.[2]
The Ontario Court of Appeal set the stage for the conflict between the respectful approach to border security and individual privacy rights as follows:
Millions of Canadians travel internationally each year with their personal computers, tablets, and smartphones. The contents of these devices attract some of the strongest privacy interests known to law because they are a window into their users’ lifestyles, beliefs, interests, desires, relationships, finances, health, and much more. But one of Canada’s border laws, namely s. 99(1)(a) of the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.), authorizes border officers to search those devices without any reasonable basis.[3]
The problem is that s. 99(1)(a) does not set any standard for when a search can conducted. The customs officer can search anything without any suspicion that an offence may have occurred. The Alberta Court of Appeal had earlier considered S. 99(1)(a) in the Canfield case and found that it violated the Charter of Rights and Freedoms.[4] The Alberta Court of Appeal had deferred implementation of their decision so that the Customs Act could be amended. The Government of Canada failed to act.
In this case, dealing with two accused on similar charges, the Trial Court had “ruled that the law was unconstitutional.[5] He also ruled that the Agency breached Mr. Pike’s and Mr. Scott’s s. 8 Charter right to be free from unreasonable searches and seizures …”.[6]
After a detailed review of the case law, the Ontario Court of Appeal found:
I agree with the trial judge and Canfield that the law strikes the wrong balance between the state’s interests and travellers’ privacy interests and, accordingly, that the Agency limited Mr. Pike’s and Mr. Scott’s s. 8 rights. The law applies the lowest possible border search threshold to the very searches of digital devices that the Supreme Court has characterized as some of the most intrusive searches imaginable. The important purposes and regulatory goals the law serves temper travellers’ privacy interests but do not justify eviscerating them. 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.[7]
The Ontario Court of Appeal departed from the Canfield decision in holding that the appropriate standard is that of “reasonable suspicion” threshold. Canfield had noted the defining of the standard should be left to Parliament. The Court of Appeal reasoned that:
Reasonable suspicion guarantees the privacy protections that the law’s subjective “good faith” test does not because it provides the objectivity which the “good faith” test lacks. Unlike the “good faith” test, 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. Likewise, it protects against Canfield’s concern that the state could use border search powers to conduct mass surveillance because officers cannot reasonably suspect everyone at a border crossing or arriving in Canada from a particular location.[8]
The Court of Appeal deferred implementation of their decision for 6 months.
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[1] See R. v. Pike, 2024 ONCA 608.
[2] R.S.C. 1985, c. 1 (2nd Supp.)
[3] See R. v. Pike, 2024 ONCA 608 at para 1.
[4] See R. v. Canfield, 2020 ABCA 383, 395 C.C.C. (3d) 483, leave to appeal refused, [2020] S.C.C.A. No. 367.
[5] See R. v. Pike, 2022 ONSC 2297, 413 C.C.C. (3d) 529.
[6] See R. v. Pike, 2024 ONCA 608 at para 23.
[7] See R. v. Pike, 2024 ONCA 608 at para 77.
[8] See R. v. Pike, 2024 ONCA 608 at para 80, citing R. v. Ahmad, 2020 SCC 11, [2020] 1 S.C.R. 577, at paras. 46‑50; see Canfield, at para. 108.
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