Canada Ontario Court of Appeals held in R v. Pike on Friday that random electronic searches at Canadian borders are unconstitutional.

Section 99(1)(a) of the Customs Act, R.S.C, 1985 allows any officer to “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.” The significance of this section lies in the fact that it does not prescribe any grounds on which the search or inspection must be based. Thus, it leaves wide powers of border control officers to inspect the personal belongings of travellers without being bound to any reasonable limit. This power, when extended to individuals’ electronic devices, can give rise to a serious concern about their privacy and right to be secure against unreasonable search and seizure.

The plaintiffs, Jeremy Pike and David Scott, were travellers whose devices were searched under the section and were found to possess child pornography. The court considered and accepted the notion that the existing standard to make searches is too low. It stated that the law “authorizes border officers to search some of the most private information imaginable on the lowest possible standard to justify a search, namely that in the border officers’ own minds, they were sincerely trying to find evidence of border law violations.” Thus, it violates Article 8 of the Constitution, which guarantees everyone the right to be secure against unreasonable search or seizure.

At the same time, the court did not strike down the charges against the two individuals, reasoning that “the unconstitutionality of this law does not entitle [them] to acquittals on the serious crimes against children with which they were charged.” Whereas the trial court had excluded the evidence collected from the trial, the appellant court observed that the “border officer’s good faith reliance on the existing law” should have been considered and ordered a fresh trial where the evidence would be considered.

The Court of Appeal of Alberta considered a similar question in R v. Canfield, wherein it observed “[the section] is unconstitutional to the extent that it applies to searches of information contained on personal electronic devices.”

Following this judgement from 2022, Bill S-7, An Act to amend the Customs Act and the Preclearance Act 2016 was introduced in the Senate. The bill strives to amend the flaws of the Customs Act by implementing a legal threshold to initiate an investigation of electronic devices, limiting the investigations within specific bounds, and creating legally binding controls on the conduct of officers in this regard. The bill is still pending and has not yet been passed.