Increasingly, our office is encountering cases in which travelers or immigration applicants at the border have their cell phone, laptop, iPad or other electronic devices searched.
In many cases, this can lead to further questioning, denial of entry to Canada, refusal of work permits, or even criminal charges depending on the information uncovered. Some examples of recent immigration cases we’ve come across include:
- A search of an intending visitor’s cell phone reveals chat records with an undeclared significant other in Canada, or texts with friends regarding potential applications for positions of employment in Canada. The individual is then denied entry and returned to the country of origin.
- A search of a work permit applicant’s LinkedIn profile on their phone reveals discrepancies with his experience as listed on his resume. The work permit is then refused and he is found inadmissible for misrepresentation, barring him from Canada for five (5) years.
- In at least one instance, a border official reviewed all email correspondence between a client and their legal counsel from our office. While this did not lead to a finding of any impropriety by the client, it is a concerning development worthy of note.[1]
The law in this area is yet unsettled as to the reasonable limitations on such electronic searches at ports-of-entry (POE). The Supreme Court of Canada (SCC) will eventually have to rule on this issue. Until that time, this post is meant to highlight the rules and limits on these searches that all travelers should know, as well as provide suggestions on how you can protect yourself. Each issue is addressed in turn.
Legal Limitations on Electronic Searches
The authority cited for border searches is mostly commonly section 99(1)(a) of the Customs Act, which arguably allows for the examination of device data as a form of “good.”
In addition, section 139(1) of the Immigration and Refugee Protection Act (IRPA) allows for a search of “personal effects” where there are reasonable grounds to believe a person has “not revealed their identity or has hidden on or about their person documents that are relevant to their admissibility”.[2]
While the SCC has yet to rule on this vital issue, some guidance may be found in a Canada Border Services Agency (CBSA) internal Operational Bulletin (“OB”).[3]
Most importantly, the OB emphasises that examinations of electronic devices should not be conducted as a matter of routine. Rather, they may only be conducted if there are reasonable grounds or a “multiplicity of indicators” that “evidence of contraventions may be found on the digital device or media.”[4]
The OB stresses the search must have a “clear nexus to administering or enforcing CBSA-mandated program legislation” and requires that “officers must be able to explain their reasoning for examining the device, and how each type of information, computer/device program and/or application they examine may reasonably be expected to confirm or refute those concerns.” Ultimately, “the officer’s notes shall clearly articulate the types of data they examined, and their reason for doing so.”[5]
In other words, a Canadian border officer should not be searching your electronic device unless they have a strong and specific reason for doing so. Simply seeking entry to Canada or making an immigration application should not automatically give rise to an electronic search.[6]
Furthermore, officers are only allowed to search what is physically stored on the device not information accessible online or on the cloud through the device.
That is to say, the search should not include accessing a traveler’s Gmail account, Facebook profile, Instagram or other account or information stored online. Accordingly, officers must disable wireless radios on a device (i.e. place the device on “airplane mode” or the equivalent) before proceeding to search.[7]
Finally, if a traveler refuses to provide a password, the device may be detained but officers are advised that “[u]ntil further instructions are issued,” they are not to arrest a traveler for refusing to provide their password, while these issues are “settled in ongoing court proceedings.”[8]
This foregoing approach appears to generally accord with the interpretation adopted by a number of provincial court decisions thus far.[9]
Protecting Yourself
The Office of the Privacy Commissioner of Canada (OPC) advises individuals entering Canada, who are concerned about electronic searches, to exercise caution by limiting the devices they travel with or removing sensitive personal information from devices that could be searched.
Another potential measure is to offload sensitive information and documents to a secure cloud, which can be re-downloaded securely after crossing the border. Again, it should be emphasized that searches must be contained to what is stored on the phone not what’s accessible online or in the cloud.
Likewise, employers are increasingly relying on the use of VPN so that confidential information is stored on remote servers as opposed to the electronic device itself.
Privileged and confidential documents should be separated into their own electronic folder, which clearly indicates they are privileged. This includes lawyers’ files, but can sometimes include files of doctors, psychologists/psychiatrists, and journalists. The CBSA is supposed to exercise further caution with respect to such materials.
Further information and advice on this issue can be found from a number of credible sources including the BC Civil Liberties Association and Canadian Bar Association.
Finally, the OPC suggests complaints with respect to electronic searches at the border may be directed either to the Canada Border Services Agency’s Recourse Directorate or by filing a complaint with the Office of the Privacy Commissioner of Canada, which is currently investigating this issue further.
[1] The issue of searching solicitor-client privileged digital material is yet another unresolved issue of critical importance. See Crossing the Border with Electronic Devices: What Canadian Legal Professionals Should Know, The Federation of Law Societies of Canada, December 14, 2018; Canada Border Services seizes lawyer’s phone, laptop for not sharing passwords, CBC News, May 5, 2019.
[2] IRPA, s. 139(1)
[3] Operational Bulletin: PRG -2015 -31, “Examination of Digital Devices and Media at the Port of Entry – Interim Guidelines”, 30 June 2015 (hereinafter “OB”). While not officially public, the OB was obtained through ATIP requests and has since been confirmed in Parliamentary testimony by CBSA officials [see Protecting Canadians’ Privacy at the U.S. Border, Report of the Standing Committee on Access to Information, Privacy and Ethics, 42nd Parliament, 1st Session (December 2017)]
[4] Operational Bulletin: PRG -2015 -31, “Examination of Digital Devices and Media at the Port of Entry – Interim Guidelines”, 30 June 2015 at p. 1
[5] Id. at pp. 1-2
[6] In the immigration context, however, anecdotal reports indicate applicants are having their electronic devices searched as a matter of routine by virtue only of the fact they are a foreign national making an application at the POE. That is to say, the POE officer is searching for evidence of a contravention before having sufficient reasonable grounds by which to believe a specific contravention may have occurred. Additionally, it appears that at least in some instances, searches include Facbeook, LinkedIn and other profiles accessible through the phone but not saved on the device itself.
[7] Id. at p. 3
[8] Id. at p. 4
[9] See R v Gibson, 2017 BCPC 237 (CanLII); R v Whittaker, 2010 NBPC 32 (CanLII) at para. 8; R v Mozo (2010), 316 Nfld & PEIR 304 at para 34; R v Moroz, 2012 ONSC 5642 (CanLII); R v Buss, 2014 BCPC 16 (CanLII); R. v. Saikaley, 2012 ONSC 6794 (CanLII); R v Bialski, 2018 SKCA 71 (CanLII). However, experts have argued that section 8 of the Charter of Rights and Freedoms requires a warrant on probable grounds for device searches at the border, except perhaps in exigent circumstances [see e.g. Protecting the Right to Privacy in Digital Devices: Reasonable Search on Arrest and at the Border, Robert Diab, Vol. 69 at p. 96 ff (citing inter alia to SCC jurisprudence that has held there is heightened expectation of privacy with electronic devices including R v Fearon, 2014 SCC 77, R v Vu, 2013 SCC 6)]
