electronic devices

Alberta Appeal Court Ruling Likely to Limit Electronic Device Searches at Canadian Border

Written on Behalf of Affleck & Barrison LLP

Sheldon Canfield (“Canfield”) and Kent Townsend (“Townsend”), both Canadian citizens, were charged with possession of child pornography contrary to section 163.1(4) and with importing child pornography contrary to section 163.1(3) of the Criminal Code.

The criminal charges against both men took place when they re-entered Canada at the Edmonton International Airport in 2014.  Although the charges against the men are unrelated, both men sought an order from the Court under the Charter of Rights and Freedoms that the evidence of the search of Canfield’s cell phone and Townsend’s computer by border officers be excluded at their trials. 

Both Canfield and Townsend had their electronic devices searched by border officers and were found to have child pornography in their possession.  They were both arrested, convicted and appealed the Court of Queen’s Bench of Alberta’s decision not to exclude the evidence obtained during the search of their electronic devices by border officials.  The Alberta Court of Appeal has ruled that the searches by the Canada Border Services Agency (“CBSA”) officers of the digital devices were unconstitutional as the Customs Act imposes no limits on the search of these types of devices at the border.

THE CRIMINAL CHARGES

At the Canadian border, Canfield was flagged for a secondary screening due to his travel patterns and “overly friendly demeanor” after returning home from Cuba.  During this screening, an officer suspected that Canfield had child pornography on his phone.  Canfield confirmed that he did and showed the officer an image of child pornography on his device. 

Townsend was also arrested after being flagged by border officials when returning home from Seattle.  Townsend was selected for a secondary screening due to his five-month travel pattern, his lack of eye contact with border officials and his lack of employment.  He was also carrying 12 electronic devices.  Child pornography images were found on Townsend’s laptop and he was arrested.

At trial, Canfield and Townsend were convicted of possession of child pornography and importing child pornography.  Canfield was sentenced to 18 months in jail and Townsend was sentenced to two years.

THE APPEAL

At their appeal, it was argued that section 99(1)(a) of the Customs Act (“Act”) was unconstitutional as it permitted unlimited searches of electronic devices at the Canadian border.

Section 99(1)(a) of the Customs Act permits Canada Border Services Agency officers to examine “goods” that have been brought into Canada.  This section has been interpreted to allow CBSA officers to search personal electronic devices without restriction.

The written decision by the three judge panel of the Court of Appeal stated:

While the search of a computer or cellphone is not akin to the seizure of bodily samples or a strip search, it may nevertheless be a significant intrusion on personal privacy.  … To be reasonable such a search must have a threshold requirement.

According to the Court of Appeal, the trial judge failed to assess the application of section 99(1)(a) of the Act considering the developing technology of personal digital devices.

There is no doubt that there have been significant developments in the technology of personal electronic devices and the way they are used by Canadians (since 1988).  Individuals were not travelling and crossing borders with personal computers or cell phones that contained massive amounts of highly personal information.

The Court ruled that the definition of “goods” in the Act is “of no force” when it comes to personal electronic devices.

The Alberta Court of Appeal found that section 99(1)(a) of the Act was unconstitutional as it imposed no limits on searches of electronic devices by CBSA officers at the border.  The Appeal Court ruled that this section will be of no force and effect for one year to allow Parliament the opportunity to amend the Act.

Despite the Appeal Court’s ruling on the constitutional validity of the section, the convictions of Canfield and Townsend were upheld by the Court based upon the finding that the border officers acted in good faith in carrying out the searches and uncovered real evidence of serious offences.  Furthermore, society’s confidence in the justice system was best maintained through the admission of the evidence obtained through the unconstitutional searches. 

The CBSA, in a statement to CBC News, reported that it is currently reviewing the appeal court decision and assessing the next steps.  According to the CBSA:

The CBSA’s policy is to examine a digital device only if there are indicators that evidence of a contravention will be found.  It is important to note that examinations of digital devices are not conducted as a matter of course. …

This is a pretty big change in the law for the 98 million people who come through our Canadian border every year.

We will continue to follow any developments in the law with respect to the limits imposed on officers to search electronic devices at border crossings in Canada and will report them in this blog.

In the meantime, if you have any questions regarding charges that have been laid against you or your legal rights, please contact the knowledgeable criminal lawyers at Affleck & Barrison LLP online or at 905-404-1047.  Our skilled criminal lawyers have significant experience defending a wide range of criminal charges and protecting their client’s rights.  For your convenience, we offer a 24-hour telephone service to protect your rights and to ensure that you have access to justice.

U.S. Border Agents Can Demand Access to Your Cell Phone

Written on Behalf of Affleck & Barrison LLP

As schools go on holiday for March Break, many of those living in Ontario will begin their vacation by crossing the border into the United States. But be aware.  U.S. border agents can demand access to your cell phone and request your password to unlock your cell phone without probable cause.

In 2017, U.S. border agents inspected more than 30,000 phones and other devices. This was found to be an increase of nearly 60% from 2016.

The U.S. Customs and Border Protection released an updated directive governing border searches of electronic devices on January 5, 2018 stating:

…border searches of electronic devices have resulted in evidence helpful in combating terrorist activity, child pornography, violations of export controls, intellectual property rights violations, and visa fraud.

U.S. DIRECTIVE: BORDER SEARCH OF ELECTRONIC DEVICES

The recently issued directive in the U.S. entitled “Border Search of Electronic Devices” provides the government with wide legal authority to search travellers’ belongings without a warrant at the border, including personal electric devices.

Basic Search

During this “basic search”, the officer may review and analyze information on the device that would be ordinarily visible by scrolling through the phone manually, including contact lists, call logs, calendar entries, text messages, pictures, videos and audio files.

Advanced Search

Border agents are authorized to perform an “advanced search” by connecting a phone to a hard drive to copy its contents for analysis when the need arises. This type of search may arise in cases where a traveller is on a watch list, there is “reasonable suspicion” of law-breaking or national security concerns. This type of analysis requires the approval of a supervisor.

Password

According to the new directive, agents have been granted the authority to request a password to open your phone without probable cause. You are allowed to refuse this request, however, doing so could result in your device being detained for further examination, your travel may be delayed, you can be denied entry if you are not a U.S. citizen or it may become difficult for the traveller to enter the U.S. on future occasions.

The Cloud

Border agents are not authorized to download old files from the cloud. They are allowed to search the data that is apparent on the phone, but cannot access anything that may be stored remotely. Officers can ask that travellers put their devices in an offline mode (airplane mode) or disable their network connectivity.

Sensitive Information

Lawyers who are crossing the border may claim solicitor-client privilege over documents by identifying sensitive documents. The officer must then consult with customs’ legal counsel and the U.S. attorney’s office to determine which files should be isolated from the regular search.

Destruction of Records

Copies of information held by U.S. customs must be destroyed following a search and any electronic devices must be returned, unless a security threat has been discovered.

WHAT TO DO WITH YOUR ELECTRONIC DEVICES WHEN CROSSING INTO THE U.S.?

It is recommended that individuals crossing the border be patient and allow the U.S. border agents to do their job. Canadians should be prepared to turn their phones over to the U.S. border agents, if asked. Canadians may be denied entry to the U.S. if they do not comply with requests made by the border agents. If assistance is requested to access your personal device, it is recommended that you comply to avoid any challenging situations.

Canadians are advised to put their mobile phones on “airplane mode” to protect their privacy, as border agents cannot download remotely or from the cloud without giving a reason.

It is highly recommended that private material be deleted from your electronics or transferred to the cloud prior to crossing the border. You may want to consider having backups of sensitive or important information on your phone in the event that your phone is detained by the government.

If you have questions regarding your rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. We take all steps necessary to protect your best interests. We maintain a 24-hour emergency service line and offer free confidential consultation to all perspective clients.