Alberta court ruling may limit smartphone, laptop searches at border crossings

·3 min read

An Alberta Court of Appeal ruling is likely to limit phone and laptop searches at Canadian border crossings, an Edmonton lawyer says.

The ruling comes after Kent Teskey's client, Sheldon Canfield, was arrested at the Edmonton International Airport in 2014 when returning from Cuba.

Canadian Border Services Agency officers flagged Canfield for a secondary screening because of his travel patterns and "overly friendly demeanor" according to court documents.

During the screening, an officer came to believe Canfield had child pornography on his phone.

Canfield admitted he did and showed the officer one of a number of child pornography images on the device. He was charged, convicted in 2018 and sentenced to 18 months in jail.

Daniel Townsend was also arrested at the International airport in 2014. He was flagged when returning from Seattle.

According to court documents Townsend was referred to secondary screening because the officer found his five-month travel pattern and lack of employment unusual. He also had 12 electronic devices — including a laptop — for which the border services officer demanded the password.

Child pornography images were found and Townsend was arrested. He was convicted in 2018 and sentenced to two years.

Josee St-Onge/CBC
Josee St-Onge/CBC

Teskey, representing Canfield, appealed his client's conviction, arguing that under the Charter of Rights and Freedoms, the officers didn't have grounds to examine the contents of Canfield's or Townsend's devices.

"The border services guards could search at will without a reason," Teskey said. "Which was in pretty stark contrast to Canadian law as it would have existed if you were pulled over or arrested."

Teskey said the searches were only made possible by a Supreme Court of Canada ruling in 1988 that said Canada Border Services had the right to search any "goods" of any international traveller.

"When the Supreme Court came up with this decision in 1988, they could have never contemplated the level of data we were bringing through the border," he said.

"So the idea that these sort of searches would be routine and without evidence really made no more sense anymore, and the court of appeal agreed with us," Teskey told CBC's Edmonton AM.

Phones, laptops no longer 'goods'

On Oct. 29, the Alberta Court of Appeal ruled that the definition of "goods" in the federal Customs Act is "of no force" when it comes to personal electronic devices.

While the court agreed with Teskey, it maintained the ruling did not affect the convictions of either man, saying the officers acted in good faith in searching the devices which uncovered evidence of a serious offence crucial to the Crown's case.

Given the significance of the ruling, the court suspended its declaration of invalidity for one year, giving Parliament time to respond with legislation.

In a statement to CBC News, the CBSA says it is reviewing the decision and assessing the next steps.

"The CBSA's policy is to examine a digital device only if there are indicators that evidence of a contravention will be found," the statement goes on to say. "It is important to note that examinations of digital devices are not conducted as a matter of course."

Teskey says they expect the Supreme Court may take up the case, but in the meantime he expects fewer searches at the border.

"This is a pretty big change in the law for the 98 million people who come through our Canadian border every year."