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VOL. 76 PART 6 NOVEMBER 2018
Despite the “ongoing court proceedings” referred to, this issue remains
unresolved and the CBSA’s present-day approach unclear.
THE CUSTOMS ACT DEFINITION OF “GOODS”
The SCC has made it clear that the Customs Act grants the CBSA broad powers
to search people and goods entering the country, and that we enjoy
diminished Charter protections against search and seizure at the border.11
The CBSA’s power to search electronic devices derives from s. 99 of the Customs
Act, which permits an officer to “open” or “examine” any “goods”.
Under its current interpretation, the definition of “goods” extends to electronic
devices without any clear limitation.
The Customs Act and its definition of “goods” predate the technological
revolution that has brought us smartphones, tablets and laptop computers.
This has led to debate over whether electronic devices ought to be included
in this definition and the expansive search powers it entails.12 Canada’s Privacy
Commissioner, Daniel Therrien, made this point clear in an address to
Parliament in September 2017:
The Supreme Court has found in many other contexts that search of
electronic devices is extremely intrusive … . I think it is clear that Canadian
courts would find groundless searches to be unconstitutional, even
at the border.
The idea that electronic devices should be considered as mere goods and
therefore subject to border searches without legal grounds is clearly outdated
and does not reflect the realities of modern technology.13
Clearly, neither the Customs Act nor CBSA policy does anything to
address the issue of solicitor-client privilege during device searches. As the
SCC has established, solicitor-client privilege is a principle of fundamental
justice.14 Any statutory provision that may authorize access to privileged
information must therefore guarantee sufficient safeguards to minimally
impair privilege in accordance with the Charter.15 The Canadian Bar Association16
and the Law Society of British Columbia17 have expressed their concerns
over searches of lawyers’ devices at the border and the consequences
for solicitor-client privilege. They assert that s. 99 of the Customs Act cannot
be interpreted as allowing warrantless searches of electronic devices or as
authorizing access to the privileged information stored therein. Both organizations
have called on the federal government to implement specific policies
to guide the CBSA and protect privilege. As of the date of writing, the
CBSA has seemingly failed to take any policy action in response to these
concerns. It remains to be seen whether Parliament will step in with
amendments to the Customs Act as a statutory solution, though no such
amendments have yet been proposed.