The CBSA Search of Electronic Devices

Although it is uncommon for the Canada Border Services Agency to search the electronic devices of people entering Canada, it does happen. In an episode of the Borderlines Podcast, which I co-host with Peter Edelmann and Deanna Okun-Nachoff, we discussed the constitutional legalities of the CBSA searching electronic devices with Marilyn Sanford, a criminal defence attorney.

This post provides a summary of the CBSA’s actual policies on the searching of electronic devices at Canadian ports of entry.  The statutory ability of officers to do so derives from s. 139(1) of Canada’s Immigration and Refugee Protection Act, which provides that an officer may search any person seeking to come into Canada and may search their luggage and personal effects, including the means of transportation that conveyed the person to Canada, if the officer believes that doing so would be relevant to their admissibility.  This can include discovering possible criminal offences, unauthorized work, or a sole intention to reside permanently in Canada without having first obtained permanent resident status.

According to PRG-2015-31, officers are expected to understand and apply the following guidelines:

    • Where the the admissibility of a traveller is in question, officers are justified in performing examinations of digital devices and media to discover documentary evidence pertaining to admissiblity, or a false identity.
    • CBSA officers shall conduct examinations of digital devices and media with as much respect for traveller’s privacy as possible, considering that these examinations are usually more personal in nature than baggage examinations.
    • Prior to examination of digital devices, officers will where possible disable wireless and internet connectivity (including by setting the phone to airplane mode) to limit the ability of the device to connect to remote hosts.
    • CBSA officers shall only examine what is stored in the device.  Officers are not to read emails on digital devices and media unless the information is already downloaded and has been opened (meaning that it has been marked as read).
    • CBSA officers shall notate in their notebooks the indicators that led to the progressive search of the digital device, what areas of the device was searched, and why.
    • With the exception of devices that are biometrically protected, CBSA officers shall not allow a traveller to input a password into a digital device themselves. Rather, officers are to request the password.
    • Passwords are not to be sought to gain access to any type of account (including social, professional, corporate or user accounts). However, should travellers voluntarily provide their usernames and passwords, then CBSA officers will be authorized to view external accounts.
    • Where a person refuses to provide a password to a digital device, then CBSA may seize the digital device.  However, until the courts have settled the issue of whether this is legal, CBSA shall not arrest a person solely because they have not provided a password to their device.

A full copy of PRG-2015-31 can be found here.


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