Canada-U.S. Blog Trade Lawyers Cyndee Todgham Cherniak and Susan K. Ross

On What Authority Does The CBSA Search Smart Phones?

Posted in Border Security

Canada CustomsI often receive calls from travelers who have had their cell phone, smart phone, PDA, iPhone, camera, and laptop computer examined by the Canada Border Services Agency (“CBSA”) during a secondary inspection.  Most of the time, the traveler is outraged because the CBSA either (a) saw naked photos on the phone, (b) found the receipt for the goods they failed to declare, (c) read emails about illegal work in Canada or (d) saw a photo of them smoking drugs or using a bong, or (e) all of the above.  In the initial contact, the person claims that the CBSA illegally searched the cell phone, smart phone, PDAs, iPhones, cameras, or laptop computer without a warrant.

The CBSA does not require a warrant to conduct an examination at the border. Section 99 of the Customs Act (Canada) gives CBSA officers the authority to examine goods and provides in part:

“An officer may
(a) 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;

(c) at any time up to the time of exportation, examine any goods that have been reported under section 95 and open or cause to be opened any package or container of such goods and take samples of such goods in reasonable amounts;

(e) where the officer suspects on reasonable grounds that this Act or the regulations or any other Act of Parliament administered or enforced by him or any regulations thereunder have been or might be contravened in respect of any goods, examine the goods and open or cause to be opened any package or container thereof; or

(f) where the officer suspects on reasonable grounds that this Act or the regulations or any other Act of Parliament administered or enforced by him or any regulations thereunder have been or might be contravened in respect of any conveyance or any goods thereon, stop, board and search the conveyance, examine any goods thereon and open or cause to be opened any package or container thereof and direct that the conveyance be moved to a customs office or other suitable place for any such search, examination or opening.”

The term “goods” is defined in subsection 2(1) of the Customs Act as “any document in any form”.  This includes electronic records.

The CBSA takes the position that they have the authority under the Customs Act to examine any electronic document because goods include any document in any form, which would include electronic form.

It is well established that the CBSA does not require a warrant when conducting searches at the border.  The Supreme Court of Canada acknowledged in R. v. Simmons that the CBSA has wide power of search at the border.  The Supreme Court of Canada wrote:

“The degree of personal privacy reasonably expected at customs is lower than in most other situations. Sovereign states have the right to control both who and what enters their boundaries. Consequently, travellers seeking to cross national boundaries fully expect to be subject to a screening process. Physical searches of luggage and of the person are accepted aspects of the search process where there are grounds for suspecting that a person has made a false declaration and is transporting prohibited goods.”

The best way to prevent the CBSA from looking at naked photos (or drug photos) on your phone is to not have them in the first place.  There is nothing wrong with traveling with a clean laptop that does not connect to your email.  There is nothing wrong with deleting your email accounts before you arrive at the border.  Review your text messages and delete ones that you do not want anyone (including your Granny) to read.

More information about searches at the border is contained in a PowerPoint “Hot Topics in Privilege: New Things To Think About!” (April 2015)

For more information, please contact Cyndee Todgham Cherniak at 416-307-4168 or by email at cyndee@lexsage.com.