In the recent decision of R. v. Pike ¹, the Ontario Court of Appeal found that warrantless searches of personal electronic devices (PEDs), such as smartphones and laptops, under s. 99(1)(a) of the Customs Act ² are unconstitutional because they violate s. 8 of the Charter of Rights and Freedoms (the Charter), which guarantees the right to be secure from unreasonable searches. However, the Court has suspended the invalidation of s. 99(1)(a), as it relates to PEDs, for six months so that Parliament has an opportunity to amend the legislation. 

Decided on August 9, 2024, R. v. Pike further builds on R. v. Canfield ³, a 2020 decision from the Court of Appeal of Alberta. R. v. Canfield was the first significant case in Canada to conclude that s. 99(1)(a) of the Customs Act, as it relates to PEDs, is unconstitutional. 

The decision in R. v. Pike is itself significant for the following reasons:

• Unlike the Court in R. v. Canfield, which left it to Parliament to develop a “carefully tailored” measure to ensure that rights are impaired no more than is reasonably necessary, the Court in R. v. Pike made clear that a “reasonable suspicion test” should be the presumptive standard for PEDs, in order to properly protect privacy interests.
• After the Court in R. v. Canfield found s. 99(1)(a) of the Customs Act (as it relates to searches of PEDs) to be unconstitutional, it suspended the declaration of invalidity for one year (and subsequently granted a six-month extension) to allow Parliament to craft a solution that addressed and balanced the various competing interests. However, Parliament failed to amend s. 99(1)(a) in time. Once the declaration of invalidity became effective, the Canada Border Services Agency (CBSA) could no longer apply s. 99(1)(a) of the Customs Act to searches of PEDs at ports of entry, at least in the Province of Alberta.
• As R. v. Canfield was not binding outside the Province of Alberta, CBSA could still conduct warrantless searches of PEDs at ports of entry located in other provinces or territories.⁴ However, as a result of R. v. Pike, the prohibition on warrantless searches of PEDs will soon extend to ports of entry in the Province of Ontario as well.

Background on border searches of PEDs

The Customs Act gives CBSA officers the authority to search goods being imported into Canada. In particular, s. 99(1)(a) states that an officer may “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.” This type of routine search does not require any reasonable suspicion on the part of the CBSA officer. In R. v. Simmons⁵, the Supreme Court of Canada (SCC) recognized that international travellers have a reduced expectation of privacy when crossing the border. It also indicated that there were three distinct levels of border searches (routine searches, strip searches and cavity searches), each of which raised different constitutional issues. The more intrusive the search, the more reasonable justification would be required.

The SCC has never directly addressed the constitutionality of warrantless border searches of PEDs. Prior to R. v. Canfield, lower courts generally found that such searches were permitted. The term “goods” is defined in s. 2(1) of the Customs Act to include “conveyances, animals and any document in any form.” These lower courts found that computers, cell phones and other electronic devices all fell within the meaning of this term. 

Prior to R. v. Canfield, the lower courts also generally found that routine border searches of PEDs did not require reasonable grounds. For example, in R. v. Leask ⁶, the Ontario Court of Justice concluded that border searches of a laptop computer were considered routine searches, which did not require reasonable grounds. 

In 2015, CBSA issued an Operational Bulletin, which updated its previous guidance on border searches of PEDs (the 2015 Bulletin).⁷ The 2015 Bulletin imposed some limited restrictions on its search authority. Among other things, the 2015 Bulletin stated the following:

• An examination of PEDs must be performed with a clear nexus to administering or enforcing CBSA-mandated program legislation that governs the cross-border movement of people and goods, plants and animals.
• CBSA officers should not examine PEDs with the sole or primary purpose of looking for evidence of a criminal offence. They must also be able to explain their reasoning for examining the device.
• Examinations of PEDs should not be conducted as a matter of routine. They should only be conducted if there is a “multiplicity of indicators” suggesting that evidence of contraventions may be found on the digital device or media. Where this occurs, CBSA officers may conduct progressive examinations of PEDs for evidence of contraventions or to support allegations.
• CBSA officers should not examine information/documentation that is stored remotely rather than on the device itself (for example, documentation stored in the Cloud).

This policy guidance did not have the force of law. It was not intended to establish individual rights or authorize state action; it was only intended to help CBSA officers to apply the relevant statutes and regulations. 

As mentioned above, R. v. Canfield was the first significant case to find that s. 99(1)(a) of the Customs Act, as it related to PEDs, was unconstitutional. In that case, the Court of Appeal of Alberta found that s. 99(1)(a) violated s. 8 of the Charter, to the extent that it authorized unlimited searches of PEDs. The Court also concluded that the provision was not saved by s. 1 of the Charter, as a reasonably and demonstrably justified limit. 

Unfortunately, R. v. Canfield did not clearly establish the minimum threshold that should be applied in order to comply with the Charter.  It also had no effect outside the Province of Alberta.⁸ 

Summary of R. v. Pike

In R. v. Pike, two travellers, Jeremy Pike and David Scott, had their PEDs searched under s. 99(1)(a) of the Customs Act. They were subsequently charged with possession and importation of child pornography. Messrs. Pike and Scott challenged the constitutionality of s. 99(1)(a) on the basis that it violated s. 8 of the Charter. 

The trial judge found that s. 99(1)(a) of the Customs Act violated s. 8 of the Charter in relation to the search of Mr. Pike’s PEDs. As a result, he excluded the child pornography found on Mr. Pike’s devices and acquitted him.⁹ However, the trial judge found that the evidence found on Mr. Scott’s PEDs was admissible¹⁰ and convicted him of importing child pornography.¹¹ The Crown appealed Mr. Pike’s acquittal and Mr. Scott appealed his conviction. 

Speaking for the Ontario Court of Appeal, Chief Justice Tulloch agreed with the trial judge that s. 99(1)(a) of the Customs Act violated s. 8 of the Charter because it authorized border searches of some of the most private information imaginable but applied the lowest possible standard to justify the search. He concluded that the Charter requires more because Canada’s border control interests temper but do not eliminate or gut its protections. A reasonable search in this context requires reasonable suspicion, meaning objective facts that establish a reasonable possibility that officers will find evidence of border law violations on the device.

Although the Ontario Court of Appeal found that the CBSA officer breached Mr. Pike’s right to be secure from unreasonable searches (in addition to the right to counsel), it ultimately concluded that the trial judge incorrectly excluded the evidence found on the devices. This is because he failed to properly consider the CBSA officer’s good faith reliance on existing law when conducting the searches, Mr. Pike’s reduced expectation of privacy in his devices at the border, the moderate length of the delay in providing the right to counsel and the interests of society in trying such serious charges on the merits. 

The Ontario Court of Appeal allowed the Crown’s appeal against Mr. Pike’s acquittal, admitted the evidence of child pornography found on his PEDs and ordered a new trial on the child pornography charges. It also dismissed Mr. Scott’s appeal against his conviction.

Analysis of R. v. Pike in the context of border searches

As mentioned above, the Ontario Court of Appeal in R. v. Pike found that the law did not strike a fair balance between the privacy interests of travellers and the state’s interests because it attached the lowest possible threshold to one of the most intrusive searches imaginable. Since the Crown could not justify this limit under s. 1 of the Charter, CBSA violated the s. 8 rights of Messrs. Pike and Scott when it searched their PEDs. 

In order to determine whether the law violates s. 8 of the Charter, it is necessary to apply a two-step test¹²:

• Claimants must first prove that the state engaged in a search or seizure. To prove a search, claimants must show that the state invaded their reasonable expectation of privacy. If the state searched them without obtaining a judicial warrant authorizing the search, it is presumptively unreasonable.
• The state must rebut this presumption and prove on the balance of probabilities that the search was reasonable by showing that a reasonable law authorized it and that the state carried it out reasonably. If the state does not meet this burden, then the search limits s. 8 rights and the state must justify that limit under s. 1 of the Charter. If the state fails to do so, the search is considered unconstitutional.

Chief Justice Tulloch agreed with the trial judge’s ruling that a search occurred because travellers have a reasonable expectation of privacy in the contents of their PEDs. He also found that travellers’ exercise of control over their PEDs strengthens this reasonable expectation, which the border context tempers but does not eliminate. 

Because CBSA did not obtain a warrant to search the PEDs of Messrs. Pike and Scott, the Crown had the burden of proving that a reasonable law authorized those searches. Chief Justice Tulloch agreed with the trial judge that the Crown did not meet this burden and CBSA therefore limited the s. 8 Charter rights of Messrs. Pike and Scott. Although s. 99(1)(a) of the Customs Act authorized the searches, the law is unreasonable because it adopts the lowest possible threshold (the subject good faith purpose) rather than reasonable suspicion, which the Charter requires. 

Chief Justice Tulloch then addressed R. v. Simmons, which referred to three categories of border searches (with different thresholds for each) and noted that it did not address what category or threshold should apply to searches of PEDs. Of course, R. v. Simmons was decided in the 1980s, when PEDs were in their infancy, were rarely transported across borders and did not contain anywhere near the immense amounts of information that they do today. 

As R. v. Simmons never addressed this question, it was not necessary to consider whether the decision could be revisited by a lower court under the exceptions to the doctrine of legal precedent set out in Canada (Attorney General) v. Bedford.¹³ Instead, the Ontario Court of Appeal could consider the five factors discussed in Goodwin v. British Columbia: (1) intrusiveness, (2) reliability, (3) oversight mechanisms, (4) purpose, and (5) criminal or regulatory nature.¹⁴ After considering these five factors, Chief Justice Tulloch concluded that the law strikes the wrong balance between the state’s interests and travellers’ privacy interests and, accordingly, CBSA limited the s. 8 Charter rights of Messrs. Pike and Scott. 

Chief Justice Tulloch concluded that “reasonable suspicion” was the correct threshold to apply for searches of PEDs. Reasonable suspicion guarantees the privacy protections that the law’s subjective “good faith” test does not. Unlike the “good faith” test, reasonable suspicion requires CBSA officers to rely on objective facts supporting a possibility of border violations that courts can independently scrutinize. This prevents CBSA officers from relying on mere hunches, intuition and uncorroborated tips of unknown reliability. 

Although the court established reasonable suspicion was the presumptive threshold for searches of PEDs, Chief Justice Tulloch also clarified that he did not wish to foreclose Parliament from adopting a lower threshold for certain discrete categories of information, which may attract lower privacy interests. For instance, Parliament could set a lower standard to examine receipts, goods valuation documents and travel-related documents contained in PEDs as part of routine screenings without limiting s. 8 Charter rights. However, if it chose to do this, Parliament should take care to define the categories of information they target precisely and adopt safeguards to prevent CBSA officers from using those powers to conduct more intrusive searches of PEDs without forming reasonable suspicion. 

Chief Justice Tulloch then considered whether the state could justify this limit on Charter rights under s. 1 of the Charter, which permits the state to make laws that impose reasonable limits on Charter rights if they can be demonstrably justified in a free and democratic society. The Crown must show that it is prescribed by law, has a sufficiently important purpose and is proportional. The limit is considered proportional if its means are rationally connected to its purpose, it is minimally impairing of Charter Rights and its salutary effects are proportional to its deleterious effects. 

After considering the above issues, Chief Justice Tulloch found that the law was unconstitutional because the Crown had not met this burden. He then chose to remedy the unconstitutionality as follows:

• The law will be read down by declaring that its authorization to search electronic documents that PEDs contain is of no force and effect. This is appropriate because only the law’s authorization to search the electronic documents contained in PEDs is unconstitutional, not its authorization to search other goods.
• The declaration of unconstitutionality is suspended for six months. The authorization of digital device searches advances compelling and important state interests; immediately declaring the law unconstitutional would undermine those interests and public safety. In addition, following R. v. Canfield Parliament began considering draft legislation to address digital searches at the border. Bill S-7, “An Act to Amend the Customs Act and Preclearance Act, 2016,” has cleared the Senate and completed first reading in the House of Commons; this eliminates the need for a longer suspension. 
• Once the declaration of unconstitutionality comes into effective, it will operate prospectively and will not apply retroactively to previous searches of PEDs.

Conclusion

The declaration of unconstitutionality described in R. v. Pike will come into effect six months from the date of the decision (i.e., February 9, 2025). After that date, CBSA officers at ports of entry within the Province of Ontario will no longer be authorized to conduct warrantless border searches of travellers’ PEDs, unless Parliament amends s. 99(1)(a) of the Customs Act before the deadline, so that it complies with R. v. Pike. According to that decision, the presumptive threshold for border searches of PEDs should be one of “reasonable suspicion.”

For more information on this case, please contact the author, Henry J. Chang.

[1] 2024 ONCA 608.

[2] R.S.C., 1985, c. 1 (2nd Supp.).

[3] 2020 ABCA 383, 395 C.C.C. (3d) 48.

[4] R. v. Sullivan, 2022 SCC 19 472 D.L.R.(4^th) 521.

[5] [1988] 2 S.C.R. 495.

[6] 2008 ONCJ 25; 2008.

[7] Operational Bulletin PRG-2015-31, Examination of Digital Devices and Media at the Port of Entry – Interim Guidelines, June 2015.

[8] Ibid., Note 4.

[9] R. v. Pike, 2022 ONSC 2298.

[10] R. v. Scott, 2022 ONSC 4496.

[11] R. v. Scott, 2022 ONSC 5823.

[12] Goodwin v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46, [2015] 3 S.C.R. 250.

[13] 2013 SCC 72, [2013] 3 S.C.R. 1101.

[14] Ibid., Note 12.