Is It Legal that the Customs Officer Searched my Phone?

Meurrens LawUncategorized

One of the most frequent complaints that clients voice to us about Canada’s immigration system is the way that they view themselves as being treated at customs.  Canada Border Services Agency (“CBSA”) officers routinely search individuals’ cellular phones, laptops, and in some cases even make them log onto Facebook.  Not surprisingly, these poor travellers wind up asking themselves “how can this be legal in Canada?”

The short answer is “because the courts have okayed it.”

It is well established in Canadian jurisprudence that persons entering Canada understand that they will be asked routine questions and that their bags may be searched randomly.  As the British Columbia Court of Appeal (“BCCA“) recently noted in R v. Nagleinterference with travellers’ independence and privacy is expected and justified on the basis of protecting Canadian borders from the perspective of national security, sovereignty, importation of illegal substances including drugs, excess amounts of currency, invasive species, and other matters.

The BCCA’s decision mirrors the Ontario Court of Appeal decision in R v. Jones, where the Court noted that:

The significance of the border crossing context to the delineation of individual Charter rights is evident from the cases that have considered the operation of s. 10(b) (the right to counsel) and s. 8 (the protection against unreasonable search and seizure) at the border. Persons seeking entry into Canada are subject to state action that can range from routine questioning to highly intrusive searches. The extent to which state action at the border will be said to interfere with individual constitutional rights depends primarily on the intrusiveness of that state action. In cases such as R. v. Simmons, the Supreme Court has recognized three levels of state action at the border. The first, or least intrusive level of that action, involves routine questioning of travellers, the search of their luggage, and perhaps a pat-down search of the person. If state action involves only this level of intrusion, the rights protected by s. 10(b) and s. 8 of the Charter are not engaged. In Simmons, supra, at p. 312, Chief Justice Dickson put it this way:

It is, I think, of importance that the cases and the literature seem to recognize three distinct types of border search. First is the routine questioning which every traveller undergoes at a port of entry, accompanied in some cases by a search of baggage and perhaps a pat or frisk of outer clothing. No stigma is attached to being one of the thousands of travellers who are daily routinely checked in that manner upon entry to Canada and no constitutional issues are raised. It would be absurd to suggest that a person in such circumstances is detained in a constitutional sense and therefore entitled to be advised of his or her right to counsel …

The conclusion, firmly rooted in the jurisprudence, that routine questioning and inspection of luggage at the border does not result in a detention, give rise to any right to counsel, or interfere with a traveller’s reasonable expectation of privacy compels the conclusion that personal autonomy and privacy – the values animating the protection against self-incrimination – were not implicated when the appellant was compelled to answer routine questions about his residence and his marital and employment status. The exclusion from evidence at his subsequent trial of these statements, therefore, could not vindicate or protect those values. Exclusion of the answers, however, could diminish the state’s ability to effectively enforce its legitimate border interests while at the same time impairing the search for the truth in the criminal proceeding by excluding relevant evidence. The balancing of competing principles of fundamental justice does not favour extending the principle against self-incrimination to statements made in the circumstances in which the appellant made his statements to the Customs authorities.

However, once border officials have assumed control over the movement of a traveller by a demand that has significant legal consequences, the person is detained and must be apprised of his or her rights and afforded an opportunity to contact counsel.  At that point, constitutional rights are fully engaged.

While the line between routine screening and detention is an interesting one, and the consequences of an unconstitutional search raises unique legal issues, most people entering Canada would be well advised to be polite and cooperate with the Canada Border Services Agency officer.  Officers have considerable discretion, and those who are polite and forthright are much more likely to be admitted then those who start launching angry challenges during routine searching.

The CBSA Enforcement Manual articulates the CBSA search and seizure policies.  To the best of my knowledge, the CBSA Enforcement Manual is not publicly available.  However, we have obtained a copy of it through an Access to Information and Privacy Act request and have made it available for purchase on this blog.   The price for this document, which is a massive 1,274 pages, is $32.95.  Our goal in providing the CBSA Enforcement Manual is to help you save valuable research time, and to provide you with a comprehensive understanding of how the CBSA operates.  Please note, however, that this document is current only as of 2012.

© All rights reserved. Canada Border Services Agency. Reproduced with the permission of the Minister of Public Works and Government Services Canada, 2013.

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