Cell Phone Searches at the Border


The Customs Act confers broad powers of inquiry and inspection. Officers employed in the administration or enforcement of the Act (such as Canada Border Services Agency officers) need not have grounds to examine a incoming traveller’s goods.
Searches may be based on suspicion or they may be entirely random. This expansive authority is necessary to permit effective policing of Canada’s borders. It increases the likelihood that contraventions of the law will be discovered by border service officers. Enhanced detection helps to deter non-compliance. 
R. v. Singh, 2014 ONSC 5658, at para 49.
Border services officers have the authority to examine any goods, without grounds, up until the time the goods are released.
Section 99(1)(a) of the Customs Act.
Goods in the custody or possession of a person who is in a customs controlled area are subject to non-intrusive examination.  Individualized suspicion is not required.
                                                    
                                                    Section 99.3 of the Customs Act.

The term "goods" is defined as including "any document in any form". 
Section 2(1) of the Customs Act
This includes electronic records.
In R. v. Moroz, 2012 ONSC 5642 (CanLII), 2012 ONSC 5642 (Sup. Ct.), a border context case, Desotti J. held that the term “goods” found in s. 99 of the Customs Act includes “the type of information found in electronic devices such as a cell-phone or an I-Phone.”
It is beyond question that a computer file such as the digital storage of photographic images is a document and falls squarely within the definition of “goods” as that term is used in the Customs Act: see R. v. Whittaker, 2010 NBPC 32 (CanLII).
On such authority, officers have the ability to examine the information on cell phones and similar devices, including photographs and text messages.
Yet, as Justice Pomerance notes in R. v. Singh, supra, “While investigative powers at the border are broad, they are not unbridled.”
Perhaps the most significant limit on the investigative power is the Canadian Charter of Rights and Freedoms. In an upcoming blog, I will discuss the Charter and the extent to which officers can search the information on an electronic device.  I will also weigh-in with an answer to a question that I am frequently asked: “Is a person legally required to provide the CBSA with the password to his/her phone or laptop, if they request it?”

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