The Canada Border Services Agency (CBSA) takes the position that the Customs Act (Canada) grants them wide search and examination powers. Section 98 of the Customs Act deals with search powers of the person. Section 99 of the Customs Act deals with examination powers respecting goods. The CBSA draws a distinction between “search” powers in Section 98 and “examination” powers in Section 99.
The CBSA takes the position that NO GROUNDS are required to examine goods on a traveller. There is no “reasonable grounds” requirement in Section 99. The normal control covering examinations are:
1) The examination must be conducted in good faith to fulfill the obligations of the Customs Act; and
2) The CBSA cannot search on constitutionally impermissible grounds – manner of search.
It is important to note that the Section 99 of the Customs Act refers to “goods”. The term “goods” is defined in Section 2 of the Customs Act to include “documents of any kind”. An electronic document would be covered by that broad language.
Subsection 115(1) of the Customs Act provides:
“If any record is examined or seized under this Act, the Minister, or the officer by whom it is examined or seized, may make or cause to be made one or more copies of it …”
Subsection 115(2) of the Customs Act provides that no record that has been seized as evidence under this Act shall be detained for a period of more than 3 months unless before the expiration of that period:
“(a) the person from whom it was seized agrees to its further detention for a specified period;
(b) a justice of the peace is satisfied on application that, having regard to the circumstances, its further detention for a specified period is warranted and he or she so orders; or
(c) judicial proceedings are instituted in which the seized record may be required.”