The CBSA has historically requested password information from travelers in order to search their smartphones, personal computers and tablets, on the basis that these devices are searchable like all other “goods” coming into Canada.

The Ontario Court of Appeal in The King v. Pike (2024 ONCA 608) has determined, however, that the CBSA’s routine searches of such electronic devices is contrary to the Charter of Rights and Freedoms (the “Charter”) and is unconstitutional!

The King v. Pike Decision

The Court found these searches to be “highly intrusive”, as the content on a traveler’s digital devices attracts the “strongest privacy interest known to the law because they are a window into their users’ lifestyles, beliefs, interests, desires, relationships, finances, health and much more.”

Specifically, such searches were found to breach two sections of the Charter: 

-          Section 8 which provides the right against unreasonable search and seizure; and

-          Section 10 which provides rights on arrest/detention including to be informed of the reason for same, and the right to retain counsel.

The Court found that while these Charter rights are not engaged on normal “first level” border questioning by CBSA officers, these rights are engaged and a “detention” occurs where the CBSA requests a person’s digital device passwords.

While customs searches of normally imported goods can continue to be conducted based on a lower “subjective good faith” basis, the Court held that, before searching digital devices there must be a higher “reasonable suspicion” basis, grounded in objective facts that establish a reasonable possibility that there will be evidence of a customs violation.  In doing so, the Court has set a higher standard for searches of digital devices similar to that used for strip searches, examining mail and searching vehicles.

Next Steps

The Court suspended the declaration of unconstitutionality for 6 months from August 9, 2024, in order to give Parliament the time to legislate the proper standard required for digital device searches in the future.  The Court noted a longer suspension should not be necessary as Parliament has already introduced draft legislation on this issue (Bill S-7) following the Alberta Court of Appeal’s similar decision in Canfield (2020 ABCA 383). 

The current draft legislation would allow a CBSA officer to search the contents of a personal digital device that has had its network connectivity disabled, provided that the officer has reasonable grounds to suspect there is a contravention or evidence of a contravention within those contents.

While the draft legislation is not yet in force, given this is the second appellate-level decision on the constitutionality of digital device searches, it is expected the government will move quickly to pass the legislation before the end of the year.  Stay tuned.

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