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.
Last updated on October 23rd, 2020
Marilyn Sanford joins Peter Edelmann and Steve Meurrens to discuss whether the Canada Border Services Agency can search people’s electronic devices.
In addition, we discussed the recent stay of proceedings in the Nuttall decision, a well publicized case in which two individuals were charged with attempting to blow up the BC legislature. Marilyn was counsel to Mr. Nuttall.
Finally, Peter and Steven touched on recent developments in Canadian immigration law, including the Owner Operator Labour Market Impact Assessment recruitment exemption, a puzzling case in which the Federal Court upheld an officer’s determination that people who extend their visitor status in Canada cannot complete short term courses during that extension without first leaving Canada, and the Supreme Court of Canada dismissing leave in the Torres case.
Marilyn is a criminal defense attorney in Vancouver.Read more ›