Here’s What To Do If A Border Guard Wants To Search Your Phone

[Thompson_JM]

FYI, in case anyone was wondering about it, the case law establishing the authority for BSO's to examine without warrant, is R. v SIMMONS.  https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/377/index.do

The MTP's to take away from this are as follows:

1. No reasonable expectation of privacy when voluntarily crossing an international border
2. All goods including electronic device are subject to examination, including locked folders. (A locked folder is viewed the same way as a locked suitcase. BSO's must be able to determine that there is not prohibited material contained within)
3. Failing to abide by this can result in the device being held, or seized for determination. Possibly charges for hindering.
4. These exams are not done as a matter of routine.
5. Warrants are not required until such a time as prohibited material is found.

Lastly, to expand on previous comments, about stupid criminals.....  Abso-fricking-lutely they do keep this stuff on their phones/laptops/flash drives/etc....   

Privacy commissioner of Canada link re: Crossing borders and Airports.
https://www.priv.gc.ca/en/privacy-topics/public-safety-and-law-enforcement/your-privacy-at-airports-and-borders/

 

[Haggis]

Here's the tale of another lawyer who didn't do his homework.  He spent four months living in a drug source country and has no idea why he was referred for a secondary examination.  Not a lawyer I would hire to defend me.

 

[Cloud Cover]

Nothing in the Rules of Professional Conduct allow a lawyer to take the privileged communications of a client across a border and expose that information to risk of search and seizure. The rules of Lavalee (which are onerous) apply to CBSA and the search, but do not prevent the search itself.
Every lawyer knows (or should know) that as a person the CBSA can perform a cursory examination of their electronic devices.  The only immunity from that is diplomatic immunity.
A forensic search can only be obtained if the CBSA agent suspects on reasonable grounds that the Customs Act (or any regulations of the Customs Act) or any other Act of Parliament administered by the CBSA have been or might have been contravened by the person who is entering or leaving the country.

The border is not the jungle of a university campus where hysterical thesis papers seems to be accepted as the new rules of law.

 

[PuckChaser]

Here's the tale of another lawyer who didn't do his homework.  He spent four months living in a drug source country and has no idea why he was referred for a secondary examination.  Not a lawyer I would hire to defend me.

I know CBSA doesn't have to follow the Charter of Rights WRT unlawful search and seizure, but whats the probable cause (or expected outcome) of searching a guy's cell phone and laptop after all his personal effects have come up clean for drug residue after secondary search? Presumably this guy is a Canadian citizen (albeit with an unknown travel history), re-entering his home country without any indicators he's a drug/money mule. Are his emails hiding physical cocaine in them somehow? I'm all for searching people as they re-enter, but if he's passed secondary and clearly not a drug/money mule, then why is CBSA allowed to search his phone? The rules are archaic and don't jive with a modern, connected society.

 

[Jarnhamar]

Sorry if this has been asked before.

Can CBSA demand a password for my email accounts or folders inside my phone past the initial locked screen?

 

[brihard]

I know CBSA doesn't have to follow the Charter of Rights WRT unlawful search and seizure, but whats the probable cause (or expected outcome) of searching a guy's cell phone and laptop after all his personal effects have come up clean for drug residue after secondary search? Presumably this guy is a Canadian citizen (albeit with an unknown travel history), re-entering his home country without any indicators he's a drug/money mule. Are his emails hiding physical cocaine in them somehow? I'm all for searching people as they re-enter, but if he's passed secondary and clearly not a drug/money mule, then why is CBSA allowed to search his phone? The rules are archaic and don't jive with a modern, connected society.

1. They do ‘follow the Charter’ (or more properly are constrained by it). Any discussion of Charter applications must bear in mind S.1, the ‘reasonable limitations’ Claude.

2. The Customs Act allows for examination of all goods coming into Canada and requires that anyone bringing goods into the country submit them to inspection. This includes digital devices.

3. Prohibited goods include certain obscene materials that are not admissible to the country. This includes things like child porn and hate propaganda. This is part of what customs officers examine for. Anecdotally I’ve been given to understand that some travel patterns (eg lone male professional traveler to some less developed countries known for sex tourism) fit behavioural profiles that are indicators for secondary screening referrals.

Long story short, anyone leaving the country should know that they are subject to examination coming back in and that this will include phones, laptops, etc. There is a greatly reduced expectation of privacy at the border, and this is congruent with the ability of a sovereign state to control entry into its borders. Case law is well established on that at this point.

 

[Haggis]

Are his emails hiding physical cocaine in them somehow? I'm all for searching people as they re-enter, but if he's passed secondary and clearly not a drug/money mule, then why is CBSA allowed to search his phone?

A travellers e-mails could contain evidence of drug smuggling or trafficking, money laundering, child porn, hate propaganda, terrorist activity, war crimes or simply the intent to work illegally in Canada or gain access to social services benefits to which they are not entitled..

He was not "past secondary".  The Customs process was not completed.  The examination of his phone was part of that process.

A Canadian citizen has the right to reenter Canada.  However, like visitors to Canada, they and all their goods and conveyances (cars, boats, planes, etc.) are subject to examination to ensure they have made a truthful declaration and they are not importing items which are prohibited, controlled or subject to duties and taxes.  You are not more trusted as a Canadian.

Sorry if this has been asked before.

Can CBSA demand a password for my email accounts or folders inside my phone past the initial locked screen?

Content locally stored on the device(s) can be searched.

 

[Jarnhamar]

Content locally stored on the device(s) can be searched.

Would someone be obligated to reveal if there was hidden from view folders or programs?

I remember there was an app that on the surface was a working music app but if you pressed the icon for 8 seconds it would prompt you for a password and inside you could store pictures and files and even contacts and messenger accounts.

 

[Haggis]

Would someone be obligated to reveal if there was hidden from view folders or programs?

If ti's stored on the device it can be examined.

I remember there was an app that on the surface was a working music app but if you pressed the icon for 8 seconds it would prompt you for a password and inside you could store pictures and files and even contacts and messenger accounts.

The younger BSOs are quite tech savvy.  Intel is routinely shared nationally and internationally on concealment methods, both physical and technological and laws are evolving to keep up.

 

[JesseWZ]

There are more than a few apps like that, we get some training on spotting them, no doubt CBSA does as well. Fortunately, if we're at a stage where we're "ripping" the phone, the files are still discoverable.

I would argue that you are obligated to truthfully declare what you are carrying - including revealing if there are hidden files on your phone when asked. Why are they hidden? Who knows - perhaps the content is illegal, immoral, or you simply like your privacy... in any event, if an examination of the phone turns up information you chose to willfully withhold from CBSA, your day is going to get worse in a hurry.

A Canadian citizen has the right to reenter Canada.  However, like visitors to Canada, they an all their goods, and conveyances (cars, boats, planes, etc.) are subject to examination to ensure they have made a truthful declaration and they are not importing items which are prohibited, controlled or subject to duties and taxes. 

Content locally stored on the device(s) can be searched.

What he said.

 

[Bruce Monkhouse]

Never forgot what was said to us in 1982 coming back from an exercise in Norway regarding customs.
"You're guilty,  prove to them you're innocent"

 

[FJAG]

1. They do ‘follow the Charter’ (or more properly are constrained by it). Any discussion of Charter applications must bear in mind S.1, the ‘reasonable limitations’ Claude.

2. The Customs Act allows for examination of all goods coming into Canada and requires that anyone bringing goods into the country submit them to inspection. This includes digital devices.

3. Prohibited goods include certain obscene materials that are not admissible to the country. This includes things like child porn and hate propaganda. This is part of what customs officers examine for. Anecdotally I’ve been given to understand that some travel patterns (eg lone male professional traveler to some less developed countries known for sex tourism) fit behavioural profiles that are indicators for secondary screening referrals.

Long story short, anyone leaving the country should know that they are subject to examination coming back in and that this will include phones, laptops, etc. There is a greatly reduced expectation of privacy at the border, and this is congruent with the ability of a sovereign state to control entry into its borders. Case law is well established on that at this point.

The issue is not an application of the S1 reasonable limitations provision. The Charter applies fully at the border and when a border agent develops reasonable and probable grounds that an offence has been committed, all appropriate Charter warnings and rights apply.

The situation prior to establishing reasonable and probable grounds , however, is quite different. At that time the agent is not dealing with an offence but the obligation to control access through our border and conducts screenings under the provisions of the Customs Act. The courts have held for some time now that the law respecting a reasonable expectation of privacy varies with the circumstances and that individuals crossing the border have a low (perhaps even zero) expectation of privacy. Accordingly, inspections, authorized by law in circumstances where there is little expectation of privacy are therefore not "unreasonable search and seizure" within the meaning of s 8 of the Charter. Again, once an agent forms reasonable and probable grounds that an offence has been committed s 8 kicks in.

Here's a pdf download of a somewhat dated article (2016) on searching electronic devices. The part about border searches starts at p. 297. Note that this area of the law is a developing one.

https://ojs.library.dal.ca/CJLT/article/download/8482/7288

:cheers:

 

[Jarnhamar]

Never forgot what was said to us in 1982 coming back from an exercise in Norway regarding customs.
"You're guilty,  prove to them you're innocent"

So, like the army

 

[Haggis]

So, like the army

Maybe that's why the CBSA is actively recruiting CAF veterans and serving Reservists.