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Protecting Privacy & Privilege of Digital Content @ the Canadian Border

Published:

June 13, 2018

Author(s):

• David Fraser

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Updated September 26, 2024.

Businesspeople (and their legal counsel) are on the road more than ever before: according to Statistics Canada, in 2023, Canadian residents took a total of 34 million trips abroad. Most travel with digital devices in hand (or briefcase). And more business travellers run into digital device searches at the Canadian border. The Canada Border Services Agency (CBSA) takes the view it can search the contents of any digital device at the border and can require a traveller to unlock and unencrypt a digital device to do so, even if it doesn’t have reason to be suspicious. We disagree. In 2020, so did the Alberta Court of Appeal in its decision in R. v. Canfield. And with its August 9, 2024 decision in R. v. Pike, so does the Ontario Court of Appeal. While these decisions aren’t binding beyond Alberta and Ontario, as appeal level decisions they are most definitely persuasive across Canada.

Here’s the basis for the CBSA’s view, the Alberta and Ontario appeal courts’ view, and practical tips to protect your privacy (and for lawyers, clients’ privilege) when travelling internationally.

Privacy @ the Border

The CBSA View: Digital devices are “goods” like any other. The CBSA’s view is based on the proposition that both a digital device and the data it contains are “goods”, just like any other “goods” – and thus, sections 99(1)(a) and 99.3(a) of the Canadian Customs Act give CBSA officials a limitless power to comb through that data without grounds or a warrant:

Examination of goods

99 (1)(a) An officer may at any time up to the time of release, examine any goods that have been imported and open or cause to be opened any package or container of imported goods and take samples of imported goods in reasonable amounts;

Non-intrusive examination of goods

99.3 (1) An officer may, in accordance with the regulations and without individualized suspicion, conduct a non-intrusive examination of goods in the custody or possession of a person who is in or is leaving a customs-controlled area.

When a traveller carries a smartphone or laptop across the Canadian border, that physical device is arguably a “good” that is “imported” into Canada. However, the legal question, is whether the digital data that is in or that is accessible through that device – like the traveler’s call records, texts, emails, financial records, medical records, geo-location data, shopping histories, Internet browsing history, … – is collectively a “good” that’s “imported” into Canada within the meaning of the Customs Act.

The Alberta & Ontario Courts of Appeal Views

In both R. v. Canfield and R. v. Pike, CBSA officers stopped a Canadian re-entering Canada at the Canadian border and searched their digital devices. In both cases, the Canadian travellers were charged with various child pornography offences as a result of the search. In both cases, the travellers defended themselves by arguing, in part, that sections 99(1)(a) and 99.3(1) breached their section 8 Charter of Rights and Freedoms right to be free from unreasonable search and seizure. And in both cases, the relevant Courts of Appeal agreed, finding both sections unconstitutional.

Our Privacy Law View

We agree with the Alberta and the Ontario Courts of Appeal. The CBSA’s view is out of step with the current state of Canadian law respecting privacy rights generally. The CBSA’s position is rooted in legislation written and enacted in the “briefcase era”, and that doesn’t even contemplate digital information. It imagines a smartphone or a laptop to be just like a briefcase containing documents; since they can search a briefcase and look at the documents, so can they do the same with a digital device. But this reasoning ignores the development of the law on privacy rights generally, privacy rights at the border, and privacy rights in digital devices – and their contents:

Privacy Rights @ Border Crossings. In its 2012 decision in R. v. Nagle, the B.C. Court of Appeal dealt with ascertaining when a person is detained, and must thus be advised of their Charter rights. In it, however, the Court confirmed that while international travellers’ expectation of privacy is diminished at border crossings, it’s not extinguished altogether: our borders are not “Charter-free zones” and “[b]order officials must be alive to the rights of travellers under Canadian law.” The Canfield and Pike decisions are consistent with this view that the Charter applies, and that the CBSA does not have the unfettered right to search digital devices without reason.

Privacy Rights in Digital “Receptacles”. Courts, in particular the Supreme Court of Canada, have recognized individuals’ increased expectation of privacy in digital devices and that computers and smartphones are unique vis-à-vis other sorts of information “receptacles” – and so are privacy interests in them. These courts have reinforced that the extent of private information now stored in digital devices requires state searches to be reasonable, regulated and contained to comply with the Charter right to be free from unreasonable search and seizure:

• As early as its 2010 decision in R. v. Morelli, the Supreme Court of Canada acknowledged that, “… [i]t is difficult to imagine a search more intrusive, extensive, or invasive of one’s privacy than the search and seizure of a personal computer.”
• In its 2012 decision in  R. v. Cole, the Supreme Court of Canada recognized that employees may have a reasonable, though limited, expectation of privacy – even in their work computer because computers used for personal purposes contain information that is meaningful, intimate and touching on the user’s biographical core.
• In its 2013 decision in  R. v. Vu, the Supreme Court of Canada continued to develop the law around privacy rights in the contents of computers, including “smart phones”, when it decided police require specific authorization in a search warrant to search the data in a computer because of the privacy interests at stake. In that decision, the Court emphasized that the privacy interests at stake in searches of computers and cellular phones are “markedly different” compared to searches of other types of receptacles (like filing cabinets). The Court built on its strong statement in R. v. Morelli and noted that in a device search police could potentially access “vast amounts of information that users cannot control, that they may not even be aware of or may have chosen to discard …”. The Court expressly stated that “… privacy interests in computers are different — markedly so — from privacy interests in other receptacles that are typically found in a place for which a search may be authorized.” (at paragraph 49).
• In its 2014 decision in R. v. Spencer, the Supreme Court of Canada decided that Canadians have a reasonable expectation of privacy in their online activities, and confirmed that a police investigation isn’t enough to give police the “lawful authority” to get personal information from organizations without a warrant.
• In its 2014 decision in R. v. Fearon, the Supreme Court of Canada continued its trend of recognizing – and protecting – privacy rights. Building on its decision in in R. v. Vu, the Court decided it must modify the police power to conduct prompt cell phone searches incident to arrest because of its increased potential to invade privacy and breach the Charter. Equating smartphones with computers, the Court reiterated that, “[i]t is well settled that the search of cell phones, like the search of computers, implicates important privacy interests which are different in both nature and extent from the search of other ‘places’… It is unrealistic to equate a cell phone with a briefcase or document found in someone’s possession at the time of arrest. As outlined in [R. v.]Vu, computers — and I would add cell phones — may have immense storage capacity, may generate information about intimate details of the user’s interests, habits and identity without the knowledge or intent of the user may retain information even after the user thinks that it has been destroyed, and may provide access to information that is in no meaningful sense “at” the location of the search.” (at paragraph 51).

• In its 2024 decision in York Regional District School Board v. Elementary Teachers Federation of Ontario, the Supreme Court of Canada built on the foundation of Charter protection of Canadians’ online content. There, the Court found the employer breached the section 8 of the Charterright to be free from unreasonable search and seizure of two teachers when it inadvertently accessed a private “log” about workplace issues the two teachers maintained in the cloud but accessed during work hours and via their work laptops.

Though not determinative, it’s notable that the Privacy Commissioner of Canada also disagrees with the CBSA’s view. In his Follow-up letter to the Standing Committee on Public Safety and National Security regarding Bill C-23, An Act respecting the preclearance of persons and goods in Canada and the United States (8 June 2017), they stated, “The idea that electronic devices should be considered as mere goods and therefore subject to border searches without legal grounds is clearly outdated and does not reflect the realities of modern technology. Border controls are important and legitimate for reasons of sovereignty and public safety, but they should not be exercised arbitrarily…”

Until recently, there was no court decision determining this question – or whether such a search violates a person’s right under section 8 of the Canadian Charter of Rights and Freedoms to be free from unreasonable search and seizure. But now, the Alberta and the Ontario appeal courts provide Canadian travellers (and their lawyers) with some guidance on the parameters of the CBSA’s right to search their digital content at the border.

5 Tips To Protect Privacy & Privilege @ the Border

The stakes are even higher when the content the CBSA is endeavouring to access is subject to solicitor-client privilege – especially if the traveler is a lawyer. Solicitor-client privilege is about more than mere privacy: it’s a constitutional right. And it’s a right that belongs to the client, not the lawyer, so it’s the client’s to waive. Furthermore, lawyers have a professional obligation to assert privilege … even at their personal peril. The CBSA does have a 2014 Operational Policy on “Examination of Solicitor/Client Privileged Materials” (PRG-2014-07) but it developed the policy with no input from the Canadian Bar Association and it’s bare: it doesn’t even touch on electronic or digital devices.

The Canfield and Pike decisions are helpful – but they’re only binding on Alberta and Ontario courts, despite have persuasive impact beyond. Until there’s a Supreme Court of Canada decision or the federal government updates the Customs Act to clarify the scope of the CBSA’s right to inspect digital content, travelling without a device, while perhaps appealing, isn’t a practical option for most travellers. But travelling without the data might be. If you don’t need the data with you, don’t bring it across the border. Instead, wipe your device and access your private work materials via the cloud once you’re across the border. However, if this isn’t an option, here are five tips to protect the privacy (and privilege) of digital content when crossing the Canadian border:

1. Encrypt it. Use the latest version of iOS or Android that employs entire device or entire drive encryption.

2. No prints. Disable fingerprint-enabled login.

3. Shut down. Turn off the device when crossing the border.

4. Lawyers. If you’re a lawyer and CBSA asks you to power the device on, identify yourself as a lawyer and indicate the device contains information that is subject to legal privilege. If CBSA persists, ask to speak with the supervisor, and repeat. If they still persist, demand to call your bar society and seek their instructions. And if they don’t give up: indicate that you will provide the device – if they seal it in an evidence bag and seek a court order authorizing them to access its contents.

5. Testing 1-2-3. Be prepared to be another test case; we’ll be rooting for you.

Please contact your McInnes Cooper lawyer or any member of the Privacy, Data Protection & Cyber Security  Team @ McInnes Cooper to discuss how to protect your content when crossing a border.

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