Electronic device searches, Canadian customs, Hunter v Southam, R v Simmons, reasonable suspicion, expectation of privacy
What goes through your mind at customs? As you wait in that folded line, edging closer to a row of enclosed booths manned by uniformed officers, surrounded by security cameras and warning signs? Perhaps you’re trying to act naturally, then wondering if it shows? Perhaps you’re mentally recalculating the amount you’ve scribbled onto your customs declaration? Or perhaps you’re exhausted from your flight, maybe nursing a bit of a hangover, not thinking about much at all? When you finally get to the front of the line, how do you expect your conversation with the customs officer to go?
According to Canadian law, one thing that you have in this moment, whether you’re thinking about it or not, is an expectation of privacy. And if search and seizure law can be distilled into a single question, it is whether your expectation of privacy is reasonable at any given moment. This paper discusses the expectation of privacy that travellers have at Canadian customs with respect to their electronic devices.
The paper proceeds first with an examination of two foundational Supreme Court of Canada cases, Hunter and Simmons. The paper then examines how the lower courts have interpreted these foundational cases so as to apply to searches of electronic devices (something not anticipated by the foundational cases themselves, which were decided in the 1980s). The paper then discusses more recent Supreme Court jurisprudence addressing the unique privacy considerations posed by modern technology outside of the customs context. The paper then examines different proposals for modifying the way that device searches are conducted at customs in order to comport with this more recent Supreme Court jurisprudence. Finally, the paper concludes by offering a new proposal for change, which relies heavily on a reassessment of the foundational cases.
Justin Doll, "Searches of the Person: A New Approach to Electronic Device Searches at Canadian Customs" (2020) 18:1 CJLT 91.