A few months ago, and despite widespread criticism, the Canadian government passed legislation allowing US border officers to conduct warrant-less searches on Canadian soil.
The Pre-Clearance Act implemented a bilateral treaty between Canada and the US, which outlines the circumstances in which either party can examine, inspect and search travelers outside of their jurisdiction (the 2015 Agreement on Land, Rail, Marine, and Air Transport Preclearance).
At law, Canadians are granted a lower expectation of privacy at the border. There are good reasons for some privacy loss at the border:
- to ensure safety of travelers
- to ensure travelers are not crossing into Canada with narcotics, weapons and other contraband or otherwise contravening Canadian laws.
Cellphones and Computers are Subject to Random Searches
However, the Pre-Clearance Act goes further. It effectively allows US border officers to conduct searches of any goods on Canadian soil and without any reasonable ground to suspect any of the above noted crimes or contraventions. As noted by the Privacy Commissioner of Canada, the failure to define “goods” as exclusive of electronic devices represents an antiquated approach: 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devices should be considered as mere goods and therefore subject to border searches without legal grounds is clearly outdated and does not reflect the realities of modern technology. Allowing intrusive electronic searches by US officers invited similar criticism from the Canadian Bar Association.
Ironically, the law leads to some (presumably) unintended consequences for Canadians and non-US citizens travelling through Canada:
- US Border officers now have more power (at least theoretically) than their Canadian counterparts. Canadian Border Services Agency Officers are subject to the Charter of Rights and Freedoms, whereas the Pre-Clearance Act explicitly excludes judicial oversight of US officers and the State Immunity Act historically means that the Charter does not apply to foreign officials.
- US Border officers now have more powers on Canadian soil than American soil, at least according to Alasaad v McAleenan, No. 17-cv-11730-DJC (D. Mass Nov. 12, 2019) where warrant-less cellphone searches were found to violate the 4th Amendment (but for US citizens only).
Reasonable and Probable Grounds
A recent court decision in R v. Swamp, 2019 ONSC 7196 confirms that Canadians at the border have greater and more certain privacy rights in their vehicle than their electronic devices. This is because section 99(f) of the Customs Act specifically allows for car searches but only where there are reasonable grounds to suspect a contravention of federal legislation. The Court in Swamp clarified what constitutes reasonable and probable grounds for a search and rejected the Canadian officer’s “reasonable grounds” to search Mr. Swamp’s vehicle, which included: a prior criminal record, an association with those with criminal records, the changing of lanes and the driving of a low value vehicle.
The Swamp case demonstrates the need for judicial oversight on possible infringements of privacy rights, even at the border.
What does this mean for Business Travelers?
For now, and without legislative change or judicial consideration, Canadians, travelers, and immigrants at the Canada-US-Border can only take protective measures over confidential and privileged information when traveling.
Canadians looking to cross the border should be prepared for increasing restrictions and possible searches of electronic devices. Field Law’s Immigration team is here to assist with any questions. Contact Orlagh O’Kelly for Canadian law questions and Miranda Sinclair for US law questions.