Ontario Court of Appeal rules law allowing border searches of personal devices as unconstitutional

The Ontario Court of Appeal recently released a 114-page decision, ruling that the Customs Act's authorization of searches of digital devices violates the Canadian Charter of Rights and Freedoms. 

Prior to this decision from August 9, 2024, the Canada Border Services Agency (CBSA) did not need a warrant to search a traveller's phone, laptop or other electronic device, as the Customs Act establishes that these items, as well as the electronic files they contain, are considered goods. Section 99(1)(a) of the Customs Act authorizes border officers to search any goods that travellers bring across the border with them. 

The court found that s. 99(1)(a) violates Section 8 of the Canadian Charter of Rights and Freedoms which guarantees everyone the right to be secure against unreasonable searches by allowing border officers to search "some of the most private information imaginable on the lowest possible standard to justify a search."

Rather than just allowing officers to "sincerely try to find evidence of border law violations," the court found that the CBSA must have a "reasonable suspicion" that they will find evidence of violations before they search a traveller's devices, which "prevents border officers from relying on mere hunches, intuition and uncorroborated tips of unknown reliability."

The court suspended its declaration of constitutionality for six months, giving the Canadian government time to create new legislation.