R. v. Gibson Date:, 2017 BCPC 237

Citation: R. v. Gibson Date: 20170118 2017 BCPC 237 File No: 208088-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. PARKER PHILIP HANEY GIBSON RULING ON APPLICATION OF THE HONOURABLE ASSOCIATE CHIEF JUDGE GILLESPIE Counsel for the Crown: L. Vizsolyi and J. Lester Counsel for the Defendant: P. Edelmann Place of Hearing: Surrey , B.C. Dates of Hearing: March 29, 30, 31, November 21, 22, 2016 Date of Judgment: January 18, 2017

I. BACKGROUND [ 1 ] On November 7, 2014, Parker Gibson was crossing by bus into Canada at the Pacific Border Crossing port of entry in Surrey, BC. He was referred in for a secondary examination by a Canadian Border Service’s Officer (“BSO”). His cellular telephone and laptop were subsequently searched by BSOs under the authority of s. 99(1) (

a) of the Customs Act , R.S.C., 1985, c. 1 (2 nd Supp.) (the “ Customs Act ”). During this search they made observations of images they believed were child pornography on those electronic devices. The R.C.M.P. attended and arrested Mr. Gibson. He is now charged with possessing child pornography on his mobile “smartphone”/cellular device and his laptop. [ 2 ] Section 99(1)(

a) is the

section in the Customs Act that BSOs rely on to search traveller’s belongings(goods), without warrant, when they cross the international border into Canada. Defence counsel acknowledges that the physical packaging of a cellular device and lap top is a good for the purpose of the Customs Act , but raises two issues in this voir dire relating to data stored in electronic devices: • Does s. 99(1)(

a) of the Customs Act authorize the search of data located in electronic devices? In other words, does the word “good” in s. 99(1)(

a) include electronic data, or is it limited to physical goods? • If s. 99(1)(

a) of the Customs Act does authorize searches of data on electronic devices, then defence counsel asserts it violates s. 8 of the Charter , as it authorizes a groundless, random search, of a computer without any limitation, that is inconsistent with a person’s right to be secure against unreasonable search and seizure as guaranteed by s. 8 of the Charter . Defence counsel acknowledges that a provincial court judge (“PCJ”) does not have the jurisdiction to make a formal declaration that a law is of no force or effect. However, he submits that in R. v.

Lloyd , 2016 SCC 13 , the majority of the Court found, at paragraph 19, that if a PCJ determines that the law is not constitutionally valid, the PCJ has the jurisdiction to refuse to apply that law in the case they are presiding over. [ 3 ] For the purpose of the voir dire , Mr. Gibson admits that the images located on his electronic devices are child pornography. [ 4 ] This is my ruling on the voir dire . II.

SUMMARY OF THE EVIDENCE [ 5 ] Three Border Services Officers (“BSOs”) employed by the Canada Border Services Agency (“CBSA”) had dealings with Mr. Gibson on November 7, 2014, at approximately 4:00 p.m. when he crossed through the Pacific Highway Border Crossing, Surrey BC into Canada. Mr. Gibson was travelling on a bus that originated in Illinois. Bus travellers are required to collect their luggage at the Pacific Highway Border Crossing, and present themselves and their luggage for a primary inspection to a BSO.

All travellers to Canada, regardless of their country of origin, must complete and present an E311 declaration document, along with their passport to the BSO at the primary inspection location. [ 6 ] BSO Paterson testified that border officers enforce the Criminal Code , the Customs Act , the CDSA and the Immigration and Refugee Protection Act (“ IRPA”) at border crossings. [ 7 ] BSO Paterson was working at the primary inspection location on November 7, 2014 when Mr. Gibson arrived.

He testified that the BSO at the primary inspection line will ask travellers routine questions and examine their documents to determine if there are any “indicators” present that suggest to the officer that a secondary inspection of the traveller and their accompanying goods should be undertaken. Examples of indicators include: travel routes; the manner in which the traveller answers the BSO’s questions; or potentially specific items that are being imported by the traveller into the country. [ 8 ] On the date in question, Mr.

Gibson was processed at the primary inspection station by BSO Paterson who did note “indicators” that caused him to refer Mr. Gibson for a secondary inspection. BSO Paterson described some of the indicators he observed. In particular, he found that the route travelled by Mr. Gibson was unusual. Mr. Gibson had taken a bus from Illinois to Canada, and only crossed the border in Vancouver, at the end of his journey. Mr. Gibson advised that he was coming to visit a relative that he had never met before. His brother had organized the trip, but he was not travelling with Mr.

Gibson, which BSO Paterson also found unusual. His passport was also newly issued and he advised he had never been to Canada before. He also said that he was bringing in commercial goods that included photography equipment, but he indicated he would not be working while he was in Canada. [ 9 ] BSO Randhawa was working in uniform and was located at the secondary inspection site at 4:37 p.m. on November 7, 2014, when he first encountered Mr. Gibson. He had a brief conversation with Mr. Gibson who advised him he was coming to see his grandfather for three days. Mr.

Gibson was in possession of an E311 declaration card with a “03A” code on it. This code indicated to BSO Randhawa that Mr. Gibson had been referred for a secondary inspection for an immigration inspection and an A side investigation, which was a selective examination at the discretion of the BSO. In the course of conducting the “03” immigration check, BSO Randhawa checked Mr. Gibson’s name on the computer data bases to determine if he had any known criminal history and the results were negative. Mr. Gibson was then directed to take his belongings and go to the secondary search inspection location.

BSO Louis was also present at that time. BSO Randhawa indicated that an A level inspection is a Customs related code which indicates to a BSO that there may be issues about whether the traveller is smuggling any contraband into Canada. At the time he was processing Mr. Gibson at the border, BSO Randhawa testified that his attention was drawn to him because he had taken such a long bus journey from Illinois to stay for only three days. BSO Randhawa also decided to look under s. 99 of the Customs Act . One of the things that concerned him was that Mr.

Gibson possessed a large volume of luggage for such a brief stay in Canada. [ 10 ] At the secondary inspection, Mr. Gibson was directed to empty his pockets. Nothing was discovered. His cell phone was taken and BSO Louis conducted an ION scan to search for the presence of drug residue and nothing was detected. [ 11 ] BSO Louis conducted a search of Mr. Gibson’s mobile phone, while BSO Randhawa searched Mr. Gibson’s bags and located a digital camera, which he turned on and then proceeded to scan the digital media using the play button on the camera. The photographs

contained travel pictures. BSO Randhawa spent one to two minutes looking at the camera. In cross-examination, he described that he believed that he had the power to search this camera and the images contained on it, because the images were saved on digital media and “without the digital media the camera cannot be a single entity – would – would be of no use”. [T., March 29, 2016, page 73, lines 15- 20.] BSO Randhawa also testified that s. 99(1)(

a) also permitted him to search electronic media for child pornography or anything that is illegal. He also understood that there were no limitations on what he could look for in reviewing the phone or camera. He was free to look at intimate pictures of people on phones and in media on other devices. BSO Randhawa testified that if he came across images where two adults were performing a consensual sexual act, he would not generally look at it, as, in his view, it was none of his business. [ 12 ] BSO Randhawa also located a laptop computer in Mr. Gibson’s belongings which he provided to BSO Louis.

There were paper documents in Mr. Gibson’s luggage, but he did not look into those. In cross-examination, BSO Randhawa testified that he stopped looking into Mr. Gibson’s bag because there were no indicators present that there was contraband present in the bag. He testified that he conducted this search under the authority of s. 99 of the Customs Act , which he said permitted him to examine the goods. [ 13 ] BSO Louis conducted a search of Mr. Gibson’s laptop computer. BSO Louis advised BSO Randhawa that there may be something of interest in a file on the laptop called “KOUSHOKU” on the computer.

This occurred before 6:00 p.m. because Cst. Randhawa recalled that at 6:00 p.m. he contacted another BSO to inquire about the significance, if any, of this name. There was nothing reported to him. He then contacted the Border Operations Centre in Ottawa for information about that name. Ottawa was not able to provide any further information about it either. [ 14 ] Mr.

Gibson was ultimately placed under arrest at 6:29 p.m. [ 15 ] BSO Randhawa testified that he “regularly” inspects “people’s Smartphones or iPhones”, and that he does so in the course of a “routine Customs examination” looking for contraband, or anything that “indicates to us, basically, there is contraband, there is child porn, there is smuggling activity, or there is intelligence in regards to some sort of a – an offence that might occur on a later date.” BSO Randhawa indicated that in the past he had observed child pornography on Smartphones.

He had also detected evidence on traveller’s Smartphones indicating they were undervaluing goods they were importing into the country. [ 16 ] BSO Randhawa described that a routine search of a Smartphone commences with him “putting the phone in airplane mode, so there are no incoming or outgoing calls”. [T., March 29, 2016, page 49, lines 34-36.] Although, BSO Randhawa initially could not recall if he had done that in this case. (BSO Randhawa then clarified that he was responsible for searching the luggage and BSO Louis was responsible for searching the electronic devices in this case.) He would check messages looking to see if there was any history of messages about the “traveller’s story”.

Then he would look at the images/photos on the phone. In the past, when he has reviewed the images he has found on cellular devices, he has observed “lots of illegal activity”, such as people trafficking in drugs, taking photos of contraband drugs, and images of child pornography. [ 17 ] BSO Randhawa could not recall how long BSO Louis had Mr. Gibson’s phone for. Defence counsel suggested to BSO Randhawa that the first image BSO Louis saw was on the phone. He agreed that BSO Louis found an image on Mr. Gibson’s cell phone that might be child pornography and then the two of them went to the office to look in Mr.

Gibson’s laptop computer. [ 18 ] Defence counsel then asked BSO Randhawa the following questions about unaccompanied data flowing across the border via the internet: Q: BSO Randhawa was asked if he knew whether customs officers conducted “searches of things being downloaded from the internet by people in Canada?

From outside--being downloaded from the internet outside of Canada, in--in Canada?” [T., March 29, 2016, page 71.] A: [BSO Randhawa did not understand defence counsel’s question and answered]: “sorry, you need to elaborate on that, especially in regards to an environment where a port of entry is concerned. The factual information you’re giving me is -- is it on a mobile phone?”[T., March 29, 2016, page 71.] Q: I am suggesting that -- in situations -- where it is not going through a port of entry. A: I don’t know what happens if it does not go in through a port of entry.

My experience has always been in a port of entry.” [T., March 29, 2016, page 71.] [ 19 ] Defence counsel questioned BSO Randhawa about whether there were any limitations of a search of a person’s computer or phone. BSO Randhawa testified that his search was limited to what was stored on the traveller’s cellular phone. He testified that he did not examine a phone while it was connected to the internet: this type of search was not authorized. However, looking at a traveller’s stored messages, photos and data was all “fair game”.

He also indicated that he did not see any limitation on searching a lawyer or judge’s phone if they were crossing the border. (Although, in this case, those issues do not arise on the facts as Mr. Gibson is neither a judge nor a lawyer.) He also said he believed he was able to review solicitor-client privileged material on a phone. [T: March 29, 2016, page 78, lines 1-13.] [ 20 ] BSO Randhawa testified that after Mr.

Gibson was arrested there were no IRPA concerns; rather the concern was with respect to the Customs Act as a result of what was discovered on his electronic devices. [T., March 29, 2016, page 64, lines 4-36.] [ 21 ] BSO Louis testified that he conducted the secondary search of Mr. Gibson’s electronic devices. He has nine years of experience working with CBSA. He was on duty and working at the Pacific Highway Border crossing on November 7, 2014, at 5:15 p.m., when he was called to assist BSO Randhawa.

When he arrived in the secondary inspection area, BSO Randhawa was examining Mr Gibson’s belongings which were spread out over a table. BSO Randhawa advised him that he was concerned about Mr. Gibson’s stated reasons for entering Canada. BSO Randhawa provided him with Mr. Gibson’s cellular device and tasked him with reviewing it. [ 22 ] In the past, BSO Louis has reviewed hundreds of electronic devices at the border, perhaps in excess of a thousand. He generally approaches the review of cellular device by looking at the messages to determine if they are consistent with the traveller’s

stated reason for entering the country. He looks at emails and text messages that have already been received and are stored on the phone itself. He does not have a specific practice about how far back he scrolls in the messages. Generally, he commences his review by examining the most recent ten to twenty messages. He also looks at the photos and videos that are stored on the device. He usually looks at the thumbnails of the images unless something specifically catches his eye. If he sees nothing that evidences a possible contravention under any of the Acts he enforces, he then concludes his examination.

He does not treat a computer any differently. He considers both laptops and computers and the data on them to be “goods”, and thus examinable under the authority of the Customs Act . This was his main focus at the time of his search of Mr. Gibson’s electronic devices. [ 23 ] In general, BSO Louis conducts between five to twelve secondary examinations a shift. It was not “one hundred percent routine for him to search a traveller’s electronic media”: it was part of a secondary search but not something he does all the time. [ 24 ] Mr. Gibson’s cellular device was not password protected. The laptop was, and Mr.

Gibson readily provided the password to BSO Louis upon request. BSO Louis commenced his review of the cellular device by examining the messages looking for information about Mr. Gibson’s travel plans. He looked at these for one to two minutes and found nothing of concern. He closed the message application on the iPhone and opened up the photo application, where he scrolled through the photos as quickly as possible until he came across one image that did catch his attention and he opened it up.

It was a cartoon image of a female infant chained to a wall with a handcuff, with the vaginal area exposed with a fluid discharge visibly emitting from it. Initially, BSO Louis was uncertain whether the image was child pornography, as he could not determine if it was an animal or human image. Upon viewing this image, he took it as a “strong indication” that there would be child pornography within the remaining goods. He shut down the phone and focussed his attention on Mr. Gibson’s laptop.

If he had been certain that what he had viewed was child pornography, he would have shut the phone down, as he did, and would not have looked at the laptop. Instead he would have arrested Mr. Gibson at that time. [ 25 ] After BSO Louis located this image, he turned to search the laptop. In addition to looking for other related images, he also “kept an open mind” about other potential Customs’ issues including weapons and undeclared currency. [ 26 ] Upon starting up the laptop computer, BSO Louis went immediately to the drives that were labelled “pictures” or “albums”.

He again glanced at the thumbnail images, but did not recall how many images he had expanded. After a few moments, BSO Louis observed that there were some folders in the desktop entitled “Koshoku”, that were like comics in image form. When BSO Louis discovered this folder, he believed he had been examining Mr. Gibson’s computer for about 10 minutes. BSO Randhawa called “Operations” to inquire about the significance, if any, of this name. CBSA Operations advised that it was not a significant name, so BSO Louis continued his search.

He looked at a few more images after this, and he located another image that he believed was child pornography. He believed he observed less than 10 photos and expanded no more than two or three of them. BSO Louis then shut down the computer and arrested Mr. Gibson at 6:29 p.m. He estimated that the computer was turned on for no more than 30 minutes, and he spent approximately 20 minutes of that time searching it. This was his first child pornography investigation. [ 27 ] In cross-examination, BSO Louis testified that he searched Mr.

Gibson’s cellular device and laptop under the authority of the Customs Act , not IRPA . [ 28 ] BSO Louis testified that when he searches a cellular device or laptop, he is not focussed on the physical packaging of the phone itself; rather he focusses his search on the data. Customs Act concerns apply equally to Canadian travellers, as well as foreign nationals. [ 29 ] BSO Louis is aware that some people do take and store naked photos on their devices, and some were present on this device.

He did not spend any time reviewing the photos stored in the file “IRL Nude Photos”. [ 30 ] Tom Ellis testified that he reviewed the telephone and laptop seized in this investigation. He noted that that the cellular device had been connected to the internet at or about 6:41 p.m. on November 7, 2014. (This suggests that the BSO did not place the cellular device in airplane mode, even though they indicated that this was their practice.) [ 31 ] Mr.

Ellis also agreed that the majority of child pornography that comes into Canada does so over the internet, not by smuggling it over the border on hard drives and devices. [ 32 ] Mr. Gibson admits, for the purpose of the voir dire , that the static animated images located on his laptop and cellular device fall within the definition of child pornography in the Criminal Code . III. Overview of the Customs Act , R.S.C. 1985 c.1 (2 nd sup) last amended August 1, 2015 [“ Customs Act” ] [ 33 ] Canada is a bilingual country and federal legislation is enacted in both official languages.

Neither version of the bilingual legislation takes primacy over the other. They must be read together. [ 34 ] The Customs Act is divided into a number of parts. Section 99(1)(

a) is the provision relied upon by the BSOs in this case to examine Mr. Gibson’s cellular device and laptop. This

section falls within

Part VI of the Customs Act , entitled: Enforcement, Powers of Officers. Section 99(1)(

a) states: Examination of goods 99

(1) An officer may (

a) at any time up to the time of release, examine any goods that have been imported and open or cause to be opened any package or container of imported goods and take samples of imported goods in reasonable amounts; [ 35 ]

Section 2 of the Customs Act is the definition section. The English text of the Act defines “goods” as follows: “g oods , for greater certainty, includes conveyances, animals and any document in any form”. “Marchandises” is the French word for goods. In the French text of the Customs Act , “Marchandises” is defined as “ Leur sont assimilés, selon le contexte, les moyens de transport et les animaux, ainsi que tout document, quel que soit son support”. This translates into English as “included within this definition, as

appropriate, the means of transport and animals, and any document, whatever its medium.” [ 36 ] The word “data” is defined in English in the Customs Act as “data means representations, in any form, of information or concepts”. “Donn é es” is the French word for “data”. In the French language, “ données ” is defined in the Customs Act as “Toute forme de représentation d’informations ou de notions”.

The English translation of this is “a ny form of representation of information or notions”. [ 37 ] “Record” is defined in English in the Customs Act as “ record means any material on which data are recorded or marked and which is capable of being read or understood by a person or a computer system or other device”. “Document” is the French word. In the French language “ document ” is defined in the Customs Act as “Tout support où des données sont enregistrées ou inscrites et qui peut être lu ou compris par une personne ou par un système informatique ou un autre dispositif”.

The English translation of this is “document is a ny medium in which data is recorded or recorded and which can be read or understood by a person or by a computer system or other device”. The word “document” is not defined in the English language

definitions in the Customs Act . [ 38 ] “Electronic records” are referenced at s. 1.3 of the Customs Act : “

(1.3) Every person required by this Act to keep records who does so electronically shall retain them in an electronically readable format for the prescribed retention period.” [ 39 ]

Section 5 of the Act indicates that the Minister may designate Customs officers for business relating to Customs.

Section 7.1 and

Section 8 of the Customs Act prescribes that travellers who are required by an officer who administers and enforces the Customs Act or any other Act that “prohibits, controls or regulates the importation or exportation of goods” to provide information that is “true, accurate and complete”. [ 40 ] Section 11(1) of the Customs Act provides that: Subject to this section, every person arriving in Canada shall, except in such circumstances and subject to such conditions as may be prescribed, enter Canada only at a customs office designated for that purpose that is open for business and without delay present himself or herself to an officer and answer truthfully any questions asked by the officer in the performance of his or her duties under this or any other Act of Parliament. [ 41 ]

Section 12 addresses reporting of goods: Report 12

(1) Subject to this section, all goods that are imported shall, except in such circumstances and subject to such conditions as may be prescribed, be reported at the nearest customs office designated for that purpose that is open for business. Time and manner of report

(2) Goods shall be reported under subsection (1) at such time and in such manner as the Governor in Council may prescribe. Who reports

(3) Goods shall be reported under subsection (1) (

a) in the case of goods in the actual possession of a person arriving in Canada, or that form part of the person’s baggage where the person and the person’s baggage are being carried on board the same conveyance, by that person or, in prescribed circumstances, by the person in charge of the conveyance; (a.1) in the case of goods imported by courier or as mail, by the person who exported the goods to Canada; (

b) in the case of goods, other than goods referred to in paragraph (

a) or goods imported as mail, on board a conveyance arriving in Canada, by the person in charge of the conveyance; and (

c) in any other case, by the person on behalf of whom the goods are imported. Goods returned to Canada

(3.1) For greater certainty, for the purposes of the reporting of goods under subsection (1), the return of goods to Canada after they are taken out of Canada is an importation of those goods. Where goods are reported outside Canada (4) Subsection (1) does not apply in respect of goods that are reported in the manner prescribed under subsection (2) prior to importation at a customs office outside Canada unless an officer requires that the goods be reported again under subsection (1) after importation. Exception

(5) This

section does not apply in respect of goods on board a conveyance that enters Canadian waters, including the inland waters, or the airspace over Canada while proceeding directly from one place outside Canada to another place outside Canada unless an officer otherwise requires. [ 42 ] I note that in s. 12(3) (

a) of the Customs Act the word “actual” modifies the word “possession”. At law, actual possession is different than constructive possession. Section 4(3) of the Criminal Code defines possession. This definition is adopted by the Controlled Drugs and Substances Act as well. The term “actual possession” is defined by Black’s Law Dictionary:

The law, in general, recognizes two kinds of possession: actual possession and constructive possession. A person who knowingly hasdirect physical control over a thing, at a given time, is then in actual possession of it.

A person who, although not in actual possession,knowingly has both the power and the intention at a given time to exercise dominion or control over a thing, either directly or throughanother person or persons, is then in constructive possession of it. [43] The Customs Tariff also references “goods”, and in certain Schedules and tariff items, “goods” are defined to include cellphones, electronic storage devices and computer software. [44] The Customs Tariff also provides that anything included in its Schedules is a “good” within the meaning of s. 2(1) of theCustoms Act.

Prohibited goods whose importation is not permitted by virtue of s. 136(1) of the Customs Tariff also references childpornography, including anything made by electronic means. [45] Section 99(2) and (3) of the Customs Act prohibits the inspection of mail at the border unless there are reasonable grounds tosuspect that the mail contains goods referred to in the Customs Tariff, or any “goods” which are prohibited, controlled or regulated,except where the mail weighs 30 grams or less unless the person to whom it is addressed consents, or there is specific label attached RE601, or if the person to whom it is addressed, or the person who sent it, is in the physical presence of the BSO. [46]

Section 101 permits a BSO to detain goods imported or exported until such time as the BSO is satisfied that the good has beendealt with in accordance with the purpose of the Customs Act. The BSO does not require any grounds to detain the goods. [47] Section 110(1) to (3) of the Customs Act authorizes a BSO to seize any good or conveyance made use of in respect of the good,or any evidence where the officer believes on reasonable grounds that the Act or the regulations have been contravened. IV. ISSUE #1: Is data stored on a cell phone or other electronic device a good? (

a) Position of the parties (

i) Defence counsel [48] Defence counsel concedes that the physical shell and packaging of a cellular phone and computer are goods, but disputes thatelectronic data is a good within the meaning of s. 99(1)(a). He further argues that while there is a body of cases that has concluded thatcell phones and laptops are “goods” within the meaning of s. 99(1)(

a) of the Customs Act, none of those cases have actually undertaken astatutory analysis of the relevant sections of the Act to determine whether those sections actually support a finding that the word “goods”includes data accessible or otherwise stored on those devices. This analysis is necessary, defence counsel submits, given the change inlaw relating to the high expectation of privacy the Supreme Court of Canada has ascribed to the information stored in, and accessible bycomputers and cellular devices. [49] Defence counsel argues that when I consider the plain meaning of the words in s. 99(1)(

a) and the definition of the word“goods” in the Customs Act, it does not support the conclusion that data is actually a “good”, because all of the references in thedefinition of “goods” are to physical items. Data, he argues, is not a physical good. Defence counsel submits that if the meaning of thelegislative text is plain, the court may not interpret it, but must simply apply it as written. The court may resort to the rules andtechniques of statutory

interpretation only if the text is ambiguous. Legislative intent governs only when the text itself is ambiguous. Inthis case, defence counsel submits that s. 99(1)(

a) of the Act is not ambiguous and on a plain reading of it only physical items areincluded within the definition of goods. [50] Defence counsel submits that the s. 99(1)(

a) of the Customs Act permits BSOs to search physical goods that have been importedand to open any package or container of goods to take samples of same. The power to take samples of goods, defence counsel argues, ismeaningless in the context of data, as it is not a physical item. [51] The word “goods” is defined in s. 2 of the Customs Act: It states that “goods includes conveyances, animals and any documentin any form”. The word “document” is not defined in the English text of the Customs Act, rather the word “record” is. The French textof the Customs Act uses the word “record” and “document” interchangeably.

The French definition of “document” translated fromFrench to English includes “any material on which data is recorded, including a computer system or other device”. Thus, the Frenchdefinition of “document” includes items that are not just physical in nature. However, defence argues that there is no indication that itwas the intention of parliament to apply the French definition of “document” to the English word. The English language version of thestatute does not define the word “document”; instead it uses the word “record”. The word “record” does not appear in the Englishlanguage definition of “good”.

Further, defence counsel argues that when the drafters of the legislation defined “goods” they madereferences to physical objects: conveyances, animals and any document in any form. To include digital information as a part of thedefinition of the word “good” in s. 2 of the Act “departs from the class of” physical objects otherwise contained in this definition.[Defence Written Argument, para. 42]. [52] Additionally, defence counsel submits that the rules of statutory

interpretation require courts to interpret terms in accordancewith Charter values. Where there are competing

interpretations available, the Charter compliant one should be applied. [R. v. Sharpe,2001 SCC 2, at para. 33; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42 , [2002] 2 S.C.R. 559, at para 33; DefenceWritten Argument, para. 32.] [53] Defence counsel also points to the manner in which the Customs Act deals with mail and notes that “a special scheme” forexamining mail at the border was enacted.

The physical exterior of the envelope could be examined, but the envelope itself could not beopened absent a warrant or individualized grounds to reasonably suspect that the mail contained a regulated or prohibited substance. Defence counsel submits that parliament drew a distinction between physical goods that accompanied the traveller and unaccompaniedmail that crossed the border. Defence counsel further submits that when travellers cross the border with electronic devices, it isequivalent to crossing the border with every piece of mail they have ever sent and released.

Further, defence counsel submits that thebasis upon which mail can be searched [the external envelope only] favours the argument that the physical packaging of electronicdevices may be searched for contraband, but not the electronic contents of that device, absent a warrant or reasonable grounds.

[ 54 ] Finally, defence counsel submits that if electronic data is a “good” then there is “no principled reason to distinguish between data being imported on an electronic device and data being imported by modern means of telecommunications”. (Defence Written Argument, para. 55.) Therefore, if data is a “good”, defence counsel argues that all data imported over the internet or other means of telecommunication is a “good” and subject to limitless monitoring by the state. Defence counsel argues that this

interpretation is contrary to the legislative intent of the drafters of the Act , when they specifically excluded mail as noted above. Additionally, this broad

interpretation would result in a complete loss of privacy for citizens in Canada. (Defence Counsel concedes that there is no evidence that the government is applying the Act in this manner.

BSO Randhawa testified that he had no idea about what happens with data flowing over the border; his only experience with it was at a port of entry when it was located on a device.) (ii) Crown counsel’s position [ 55 ] Crown counsel responds to this argument by noting that s. 99 of the Customs Act intentionally provides a broad power to inspect goods accompanying a traveller at the border in order to meet the objectives of the Act . The Crown argues that the definition of “goods” in the Act is not an exhaustive definition. It specifically references “documents in any form”.

The Crown also submits that there are a number of cases that have concluded that the word “goods” includes documents in electronic form. [See for example, R. v. Whittaker , [2010] N.B.J. No. 332, at para. 8 ; R. v. Mozo , [2010] N.J. No. 445, at para. 34 ; R. v. Buss , [2014] B.C.J. No. 345, at para. 25 ; and R. v. Saikaley , 2012, ONSC 6794 , at paras. 79-82 .] [ 56 ] In Whittaker , the Honourable Chief Judge Jackson relied on the dictionary definition of the word “document”. The first two

definitions of “document” in the dictionary referenced written items, but the third definition referenced a “computer data file”. [ 57 ] At paragraph 8 in Whittaker , the court found that there was no principled basis to distinguish between items brought over in hard copy and those items in digital form. If that was the case then, for example, books that were in a physical form would be searchable, whereas books stored digitally in the electronic device, would not be.

Judge Jackson concluded that the Customs Act permitted a search of all goods being brought into the country, regardless of whether they were in hard copy or in a digital format. [ 58 ] Further, Crown points out that the non-exhaustive definition of the word “good” in the Customs Act refers to documents in any form. Crown argues that must mean something more than just physical documents, which is the usual form of document.

If it does not, then Crown argues that latter portion of the legislation would be meaningless. [ 59 ] Crown counsel points to the scheme of the Act , which they submit includes an expansive definition of “goods”. They point to the Customs Tariff, SC 1997 (“ Customs Tariff ”), which specifically includes electronic devices and their contents in the definition of “goods”. Further, they submit that the Customs Tariff states that anything in its

Schedule is a “good” for the purpose of the Customs Act . [Crown Written Argument, para. 34.] [ 60 ] Crown counsel also notes that the word “document” is defined in the French version of the Act and has an equivalent meaning to the English word “record”. The French version of “document” includes “any material on which data are recorded or marked and which is capable of being read or understood by a person or a computer system or device”.

There is no definition of “document” in the English version of the statute, and the Crown submits that by implication, the word “document” also takes on the French meaning which specifically includes “any material or data capable of being read by a computer system.” [ 61 ] Regarding the exceptions in the Customs Act dealing with mail, the Crown submits that those sections address mail that is in transit when it crosses the border; not mail received, or in the possession of a traveller when they cross the border.

By contrast, the Crown submits that when BSOs search mail that has already been sent or received, it is not mail in transit. Therefore the analogy to mail is not relevant. [ 62 ] Finally, with respect to defence counsel’s submission that if data is a “good” then all data crossing the border, regardless of whether it is stored on a device, Crown submits that there is simply no evidence that is the intention of or the practice of the government. Instead, the focus on s. 99 (1)(

a) of the Act is the search of “goods” in the actual possession of the traveller that have been imported. [ 63 ] In order to address the submissions raised by counsel in respect of this issue, I will canvas the case law that has previously dealt with whether the word “goods” includes electronic data for the purpose of a s. 99(1) (

a) Customs Act search. I will then review the relevant law arising with respect to statutory

interpretation as it relates to the specific sections of the Customs Act in this case. (

b) Case law regarding Section 99(1) (

a) of the Customs Act – Searches of Electronic Devices [ 64 ] In R. v. Buss , 2014 BCPC 16 , Judge Oulton reviewed several recent cases, also brought to my attention by Crown counsel in this case, where other courts have found that cell phones are goods within the meaning of that word in s. 99(1) (

a) of the Customs Act : [25] Canadian Border Service officers have powers to "examine goods" under s. 99 of the Customs Act or to "search people" under s. 98 of the Customs Act . They may conduct warrantless searches under s. 99(1) (

a) of the Customs Act . While I am told that no court in B.C. has specifically considered whether a computer or a cell phone is a "good" under the Customs Act , I find that both are. In doing so, I consider both the broad definition of "good" found in s. 2 of the Customs Act , which includes "any document in any form," and the cases decided in other provinces that have considered this issue. [26] In R. v.

Moroz , [2012] ONSC 5642, Justice Desotti found that a cell phone was a "good" under the Customs Act , and that a cursory view of a cell phone to review its electronic information may assist Customs officials in fulfilling their duties, and that documents in electronic form were also "goods" under the Customs Act , at paras. 20 and 21. [ 65 ] Crown counsel also relied on other cases in her argument before me to support the proposition that other courts had considered this

section of the Customs Act before, and concluded that the data stored in a cell phone/computer is a good within the meaning of s. 99(1) (a).

[66] In R. v. Mozo, [2010] N.J. No. 445, Customs officers were conducting random searches of cabins of crew members on thevessel, MV British Serenity, after it docked in Canadian waters. Inside one crew member’s cabin, they located a laptop with an externallink entitled “Porno” on it. The BSO was unable to open the file. As noted by Judge Kennedy, not all pornography is illegal in Canada. The BSO testified that he knew child pornography was illegal and he decided to inspect the contents of the laptop to determine if therewas this type of contraband on the laptop.

The Customs officers testified that they called the crew member who was residing in thatcabin and asked to see the external hard drive, which the crew member produced. It was a 4 GB memory stick. BSO Smith examinedthe memory stick, located what he believed was child pornography, and arrested the crew member. Judge Kennedy found that the searchof the memory stick was lawful and authorized by s. 99(1)(

a) and other sections of the Customs Act. Consequently, it is implicit inKennedy P.C.J.’s reasons that the data on the USB stick/thumb drive was a good, as that was the subject matter of the actual searchconducted by the customs officers. [67] In R. v. Leask, [2008] O.J. No. 329, Nadel J. analysed the scope of s. 99(1)(

a) of the Customs Act in the context of a Customsofficer’s search of Mr. Leask’s laptop computer where child pornography was located. Mr. Leask argued that the search of his computerwas more than a routine border search, and was a breach of his s. 8 Charter rights, on the basis that a computer was “an item like noother”.

Nadel J. observed that a computer contained the most intimate thoughts and information of the person who possessed andtherefore attracted the “very highest expectation of privacy”. [para. 5.] [68] Nadel J. did not specifically engage in a discussion about the search of data in the computer versus searching the physicalpackaging of the computer.

But in my view, it is clear that when Nadel J. described at paragraph 15 the “exceptional storage capacity” ina computer that made it a “potentially dangerous reservoir of the most pernicious forms of child pornography”, he was speaking aboutthe data stored on the computer, not the physical packaging of the computer. [69] Justice Lalonde in R. v. Saikaley, 2012 ONSC 6794 , [2012] O.J. No. 6024, was confronted with the issue of whetherthe Customs Act permitted the search of goods such as a cell phone/iPhone by CBSA officers. In that case, Mr. Saikaley’s cell phoneand camera were searched by BSOs at the border.

He was also the subject of a separate police investigation. BSOs located a “debt list”on his phone, as well as names and numbers of people associated to the broader police investigation. When Lalonde J. referred to thesearch of the accused’s cell phone, he made reference to the “iPhone’s content”. He also quoted from Desotti J.’s reasons in Morozwhere Desotti J. concluded that the “use of the expression ‘goods’ found in s. 99 of the Customs Act reflect the type of information foundin electronic devices such as a cell phone and or an iPhone”. [Moroz, paras. 20-21.] In my view, Mr.

Justice Lalonde was consideringwhether the data stored in a cell phone was a good within the meaning of the Act. He concluded that it was. [70] I am unaware of any cases where a court has found that data on an electronic device is not a good for the purpose of s. 99(1)(a)of the Customs Act. [71] For ease of reference, defence counsel’s position is that these cases were decided before the most recent decisions of theSupreme Court of Canada in Vu, infra and Fearon, infra, where the Court has clearly indicated that the privacy interest in theinformation available in a computer is very high.

The Court has also clearly indicated that comparisons between the computers and briefcases are not accurate: a computer contains detailed information touching upon all aspects of a person’s private life. Defence counselsubmits that none of the aforementioned cases have considered whether data is a good in the light of the principles that inform statutoryinterpretation. (

c) R. v. Daoust, 2004 SCC 6 (

i) Summary of the facts [72] As noted above, s. 99(1)(

a) of the Customs Act authorizes a search of “goods” that have been imported. “Goods” that areimported in the actual possession of a traveller or that form part of a traveller’s baggage shall be reported by the traveller upon arrival inCanada, pursuant to s. 12 of the Customs Act. “Goods” are defined in s. 2 of the Act. The definition includes conveyances, animals anddocuments in any form. As noted above, the word “document” is defined in the French version of the Act, but not in the English version. The French definition of the word “document” includes data.

In order for me to determine whether the French definition of the word“document” should be applied to the English word “document”, it is necessary for me to review the principles of statutory

interpretationset out in the Daoust case. [73] In Daoust, Bastarache J., for the Court, discussed how to resolve discrepancies between English and French versions of thesame sections of federal legislation. In Daoust, the Court noted that they were “faced with two versions” of s. 462.31 of the CriminalCode, one in English and one in French, that were clear in their meaning, but their content was irreconcilable. [74] At para. 26 in Daoust, Mr. Justice Bastarache quoted from Mr. Justice LeBel in Schreiber v. Canada (Attorney General),[2002] 3 S.C.R. 269, 2002 SCC 62, at para. 56: A principle of bilingual statutory

interpretation holds that where one version is ambiguous and the other is clear and unequivocal, thecommon meaning of the two versions would a priori be preferred; see: Côté, supra, at p. 327; and Tupper v. The Queen, (SCC), [1967] S.C.R. 589. Furthermore, where one of the two versions is broader than the other, the common meaning would favour themore restricted or limited meaning: see Côté, supra, at p. 327; [further citations omitted]. Mr. Justice Bastarache also cited R. v.

Mac, 2002 SCC 24 , [2002] 1 S.C.R. 856, where he noted that the Criminal Code, likethe Customs Act is a bilingual statute, therefore the English and French versions are equally applicable. No one version of the statutetakes precedence. [75] At paragraphs 27-31 in Daoust, Bastarache J. sets out the procedure that should be followed by courts when interpretingbilingual statutes that have differences between the English and French versions. If the two versions of the legislation cannot bereconciled then the court must rely on other principles. [para. 27.] A purposive and contextual approach is preferred. [R. v.

BellExpressVu Limited Partnership, 2002 SCC 42 , [2002] 2 S.C.R. 559, at para. 25.]

[76] When assessing the meaning to be given to legislation that is different in each language, the court should ask the followingquestions: • Are one or both versions of the statute “reasonably capable of more than one meaning”?

If one version is ambiguous and the otheris not, then one must look to the common meaning between the two versions, which will be the plain version that is not ambiguous.[para. 28] • If neither version is ambiguous, or they both are, then the common meaning is normally the narrower version. [para. 29] • Where there is a common meaning between the two versions of the legislation, effect should be given to that common meaning.[para. 29] • The [second step] court must then determine whether the common or dominant meaning is consistent with Parliament’s intent.[para. 30] [77] Some principles of statutory

interpretation are only to be applied where there is an ambiguity in the enactment itself. Forexample, the “strict construction of Penal statues” rule and the “Charter values” presumption only apply where there is ambiguity in theprovision. [See Bell Express Vu, para. 31.] [78] In the Customs Act, as noted above, s. 99(1)(

a) sets out the basis upon which BSOs search data located on a traveller’s cellphone and computer. BSO Louis testified that his understanding of the Act is that a computer/cellular device is a “good” within themeaning of that section. It is clear from the evidence of BSO Louis that Customs officers search the data on these devices, not just thephysical packaging of them.

According to BSO Louis, if “nothing catches” his eye during this review, he would then cease hisexamination. (ii) Resolving the discrepancy between the English and French definition of the word “document” [79] As noted above in Daoust, the English and French versions of statutes are equally binding. Where there is a discrepancybetween the French and English versions of the statute, Daoust sets out the series of steps that must be undertaken by a judge to assesswhat meaning should be ascribed to the legislation in order to resolve the conflict. [80] In this case, s. 99(1)(

a) of the Customs Act permits search of a traveller’s goods upon arrival at the Canadian Border. “Goods”is defined in s. 2 of the Act as including any conveyances, animals and any document in any form. [81] The English version of the Customs Act does not define the word “document”, but it defines the word “record”.

The Frenchversion of the Act defines the word “document” and it has the same meaning as the English word “record”. [82] The French definition for document translated into English is “any medium in which data is recorded or recorded and which canbe read or understood by a person or by a computer system or other device”. [83] At paras. 29 and 30 of Daoust, “Where there is a common meaning between the two versions of the legislation, effect should begiven to that common meaning”. [Daoust, para. 29.] [84] The [second step] court must then determine whether the common or dominant meaning is consistent with Parliament’s intent.[Daoust, para. 30.] [85] In the English version of the Customs Act the word “document” is not defined. “Record” is defined and it has the samedefinition as the French word “document”.

No ambiguity is therefore created, as the English version of the Act is not in conflict with theFrench version. Rather, they define the word “record” and “document” interchangeably. Thus, I find those two words have a commonmeaning. (iii) Is the application of the French definition to the English word “document” consistent with purpose of the Customs Act? [86] According to Bastarache J., writing for the Court in Daoust, I must then go on to determine whether the French meaning of“document” is consistent with Parliament’s intent. In other words, is this

interpretation consistent with the purpose of the Act? At para.30, Bastarache J. sets out the scope of this inquiry: [30] The second step is to determine whether the common or dominant meaning is, according to the ordinary rules of statutoryinterpretation, consistent with Parliament’s intent: Côté, supra, at pp. 328-329. At this stage, the words of Lamer J. in SlaightCommunications Inc. v. Davidson, (SCC), [1989] 1 S.C.R. 1038, at p. 1071, are instructive: First of all, therefore, these two versions have to be reconciled if possible.

To do this, an attempt must be made to get from the twoversions of the provision the meaning common to them both and ascertain whether this appears to be consistent with the purpose andgeneral scheme of the Code. [87] In order to assess whether applying the French language definition of “document” to the English word “document” is consistentwith the “purpose and general scheme of the Act”, I must review the latter. [88] Mr. Justice Fish described the purpose of the Customs Act in Martineau v.

M.N.R., 2004 SCC 81, at para. 25: The objectives of the CA [Customs Act] are to regulate, oversee and control cross-border movements of people and goods. As DicksonC.J. stated in R. v. Simmons, (SCC), [1988] 2 S.C.R. 495, at p. 528: “It is commonly accepted that sovereign states havethe right to control both who and what enters their boundaries. For the general welfare of the nation the state is expected to perform thisrole.” To this end, the CA provides for the collection of duties and taxes on imported goods.

[ 89 ] There is nothing in the purpose of the Act that appears to restrict the definition of “good” to mean simply physical items being brought across the border. Dickson C.J.C. in Simmons referred to the goal of Customs officers to assess and control who and what was entering the boundaries of Canada for the “general welfare of the country”. That definition of purpose is understandably broad given the importance he attaches to preserving the integrity of the border. [ 90 ] I also note that the Customs Tariff incudes a broad definition of the word “goods” that includes electronic devices.

It also defines “prohibited goods” at s. 136(1) and specifically includes child pornography in an electronic form, in that definition. [ 91 ]

Section 12 of the Customs Act sets out that all goods that are being imported must be reported at the nearest Customs office designated for that purpose. Section 12(3) defines the goods that are to be reported under s. 12(1). It includes goods in the actual possession of the person arriving in Canada, or that are in that person’s baggage in any conveyance where that person and their baggage is being carried. Goods being brought in by a courier must be reported by that courier, and other goods being brought in later by a conveyance must be reported by the person in charge of that conveyance. Section 99(1)(

a) of the Act references a search power in relation to goods that have been imported in to the country. [ 92 ] In my view, none of these references to “goods” in the Customs Act capture or include data that is not actually being stored on the traveller’s device or laptop that was accompanying them.

Data stored on another device, not in the actual possession of the traveller or data stored remotely in the cloud, or on an external network, would not be in that traveller’s actual possession or in their baggage at the time they cross the border, nor would it “have” been imported at the time they are crossing the border. It is my view that it is only data that is stored on the device at the time the traveller enters Canada that is actually being imported. The purpose of the Customs Act is to regulate, oversee and control cross-border movements of people and goods. Viewing s. 12 and s.99(1)(

a) collectively, the

interpretation that only the data stored on a cell phone at the time a traveller crosses the international border into Canada is the one that is consistent with the purpose of the Act . Therefore, it is my view that at the time the Customs officer reviews the traveller’s phone, their authority is to view stored data on the device, not messages in transit travelling over the internet, not data stored on other devices not with the traveller, and not information in the cloud or remote networks, that is not downloaded onto that traveller’s actual device or laptop.

If a BSO seizes a traveller’s phone and reviews the phone without placing it into a non-data receiving mode, then the officer risks viewing data that may not actually have been in the possession of the traveller at the time the traveller arrived in Canada. BSO Louis confirmed that it was his practice to place phones into airplane mode at the border when he reviewed a traveller’s electronic device. (

d) Conclusion Re: Issue #1 [ 93 ] There is a body of case law that I have reviewed that has consistently found, explicitly or implicitly, that data stored on a cellular device is a good within the meaning of s. 99(1) (

a) of the Customs Act . I am unaware of any cases that have held otherwise. [ 94 ] Defence counsel submits that the jurisprudence has changed since these decisions were made. His position is that the Supreme Court of Canada in cases such as Vu, infra, Spencer, infra, and Fearon, infra, has now clearly delineated a high privacy interest in cellular devices. They have also clearly indicated that the comparison between computers and brief cases and filing cabinets is not appropriate, as computers hold highly private, personal and significant information about us, and are a portal to our inner most thoughts.

Therefore defence counsel submits that the Customs Act does not actually support a definition of “goods” that includes electronic data stored on devices. Accordingly, I have undertaken a review of the Customs Act , and considered the various arguments made by both counsel about the

interpretation of the Act . [ 95 ] When I review the legislative purpose of the Customs Act and the sections associated with importation of goods into Canada, I conclude that the definition of “record” in the English language and “document” in the French language are interchangeable. I have also concluded that it is not contrary to the purpose or intent of the legislation that the words be used interchangeably. I therefore conclude that the English definition of “good” in the Act includes the French definition of “document”, which means that goods in s. 99(1) (

a) include any materials on which data are recorded or marked and which is capable of being read or understood by a person or a computer system or other device. This is a broad definition, and I find that it includes the data stored on any electronic device that is in the actual possession of or in the accompanying baggage of the traveller at the time they arrive at the border and commence dealings with the customs officers. Accordingly, I find that s. 99(1) (

a) authorizes a CBSA officer to examine the data stored on any electronic device in the actual possession of, or in the accompanying baggage of the traveller. [ 96 ] I also conclude that the data imported on an electronic device, according to the relevant provisions of the Customs Act legislation and the evidence I have heard, is restricted to data that is stored on the electronic device at the time it is being imported. When the electronic device is being searched by the Customs officer, in order to comply with the Customs Act , it should be placed in a mode that does not permit it to access the internet.

For greater certainty, that means that data stored on the cloud, on remote networks, or remotely on other devices not in the possession of the traveller at the time they are crossing the border, and not stored on the device(

s) in their possession at the time they cross the border, is not searchable at the instance by the BSO. Data stored remotely is not a good being imported by the traveller at the time they present themselves to the BSO pursuant to s. 12(1) of the Act , nor is it a good that has been imported pursuant to s. 99(1) (a).

However, hard drives, USB sticks and other data storage devices in the actual possession of the traveller or in their possession in their accompanying baggage at the time they present themselves at the Customs office is a good, and subject to inspection. [ 97 ] Defence counsel’s comparison between mail in transit at the border and messages that are stored on devices is not helpful. Unaccompanied mail passing through international borders is in transit, whereas messages viewed on a traveller’s phone have already been sent or received.

In my view, the search of a traveller’s electronic device at the border is restricted to stored data, not the data that is in transit or remotely stored in other locations. [ 98 ] I also do not find any evidence that the Canadian government regulates, searches or otherwise monitors unaccompanied data that notionally travels on the internet across invisible borders. In the facts of this case, I have found that only data stored on the device is searchable under the authority of the Customs Act .

It is my view that the submissions that defence counsel makes in respect of mail may be applicable to the search of unaccompanied data travelling across the border, if it arose. As it does not arise on these facts, that is the extent to which I intend to address that issue.

V. ISSUE #2: Is Section 99(1)(

a) of the Customs Act contrary to the requirements of

Section 8 of the Charter ? [ 99 ] In order to properly balance an individual’s privacy interests in the data stored in their electronic device against the state’s interest in controlling and maintaining the commercial and national security of its border, it is necessary to review the law in relation to these competing interests. (

a) Positions of the parties (

i) Defence counsel’s position [ 100 ] Defence counsel submits that the Supreme Court of Canada has set out in cases such as Vu, Spencer and Fearon that there is a high expectation of privacy in cellular devices and computers. Accordingly, the Supreme Court of Canada has concluded that special protections apply when searching these devices. For example, in Spencer the Court was concerned about protecting a person’s reasonable expectation of privacy in remaining anonymous when searching the internet. Accordingly the majority of the SCC ruled that a warrant was required to obtain an internet subscriber’s identity.

Similarly, in Vu , the majority of the Court required that a separate warrant was required to search a computer even if the police were already lawfully in the residence pursuant to a warrant. (The majority of the Court did find that it would be permissible to seize the computer, but express authority was required to search it). The Court felt this level of protection was necessary given the high expectation of privacy associated with data on a computer and also noted that computers were “portals” in to other remote data locations. [ 101 ] Defence counsel submits that if data is a “good” then s. 99(1) (

a) authorizes a groundless, warrantless limitless search of the data on a computer. This type of search fails to recognize the high privacy interest in digital devices. Notwithstanding that people have a reduced expectation of privacy at the border, the appropriate constitutional balance is not struck, as s. 99(1) (

a) of the Customs Act “authorizes customs officers to comb through any data accessible through electronic devices for any reason - has no safeguards, has no limits and strikes no balance” which means it is not reasonable at law. [Defence Written Argument, para. 81.] [ 102 ] The SCC has recognized these interests and placed limits on these types of searches as noted in Vu , where a separate warrant is required to search computers found in places that are not specifically particularized in the warrant.

In Fearon , the common law search power incident to a lawful arrest was also restricted by the majority of the SCC to take into account the high privacy interests in an electronic device. Defence counsel also submits that American cases are also recognizing this high privacy interest, even in the context of the border. (I do note that the United States Supreme Court has not changed its position and continues to permit groundless, warrantless searches of electronic devices at the border.) (ii) Crown counsel’s position [ 103 ] The Crown submits that s. 99(1) (

a) authorizes a search of data on electronic devices. Recently the SCC in Fearon declined to find that the common law search power incidental to a lawful arrest should be restricted to only permit law enforcement agencies to search cellular devices in exigent circumstances. [ 104 ] The Crown argues that the majority of the SCC in Fearon found that a search of a cell phone was not comparable to a strip search. [ 105 ] The Crown submits that Simmons is still good law in Canada. In that case, the SCC recognized that the public’s interest in maintaining the integrity of the border was very high.

The majority of the court in Simmons set out three distinct categories of searches and the search of data at the border is a first level search and requires no grounds to conduct that search. Those categories of searches are not on a continuum, rather they are discrete categories. [ 106 ] The Crown also argues that there are limitations in place in respect of s. 99(1) (

a) of the Customs Act : the search must be for a customs purpose; the electronic device must not be accessing the internet at the time of the search; and the reasonableness of the search can be reviewed after the fact. (

b) Characterizing the privacy interest in a cellular device/computer [ 107 ] The Supreme Court of Canada (“SCC”) has clearly concluded in Regina v. Vu , infra , that for the purposes of analysing the privacy interest in electronic devices, there is no material distinction between a Smartphone/cellular telephone and a computer. [ 108 ] Further, the SCC has concluded that cell phones and computers are not like briefcases. In R. v. Cole , 2012 SCC 53 , Mr. Justice Fish, at para. 2, described the privacy interest in a computer as very high.

He stated that: “ Computers that are reasonably used for personal purposes, whether found in the workplace or at home, contain information that is meaningful, intimate and touching on the user’s biographical core. Vis-à-vis the state, everyone in Canada is entitled to expect privacy in personal information of this kind. ” This position was consistent with the change that occurred in respect of how courts characterized the privacy interest in computers. Before Morelli , many courts still compared computers to briefcases.

After Morelli , the SCC clearly indicated that the privacy interest in a computer was very high, having regard to the nature and volume of information capable of being stored on these electronic devices, noting that the information stored on computers was often very personal and private. [See R. v. Morelli , 2010 SCC 8 .] [ 109 ] In R. v. Patrick , 2009 SCC 17 , the Court noted that “privacy is a matter of reasonable expectations.

An expectation of privacy will attract Charter protection if reasonably informed people in the position of the accused would expect privacy.” [ 110 ] The SCC continued to analyse the privacy interest in computers and evolving technology. In R. v. Spencer , 2014 SCC 43 , the SCC was confronted with the issue of whether there was a privacy interest in an internet protocol (“IP”) address. The SCC noted that what was of particular importance was how the issue was framed, having regard to the privacy issue at stake.

The Crown’s position was that an IP address contained only the name and address of the internet subscriber. They contended that the privacy interest in that information was quite low. Mr. Spencer, on the other hand, described the privacy interest as running to the heart of what internet browsers expect reasonably to do: browse the internet in anonymity. In other words, the IP address protects the internet user’s right to be

anonymous when they search the internet. Ultimately, Mr. Justice Cromwell found that it was indeed the right to search the internet inprivacy that informed the important and necessary privacy interest in the IP address. The Court favoured the individual’s privacy interestin anonymity over the state’s interest in effective law enforcement on the basis that an individual searching the internet should have“control over how, when and in what context that information was revealed to the state”. Thus, the Court found a warrant was necessaryto obtain an IP address from an internet service provider. [111] Mr.

Justice Cromwell in R. v. Vu, [2013] 2 S.C.R. 657, characterized computers as deserving of additional protection, given thehigh privacy interest associated with the confidential and private information typically stored on a computer and also the concern thatcomputers were portals to access other data stored remotely. In Vu, Cromwell J. concluded that a computer located in a place that policewere authorized to search by warrant could be lawfully seized but not searched, unless the warrant specifically authorized the police tosearch that computer. In

summary, Cromwell J. stated that the privacy interest in a computer was so high that specific pre-authorizationto search that computer must be obtained. [112] At para. 40 in Vu, Mr. Justice Cromwell drew on the principles articulated by Fish J. in Morelli when he stated that it wasdifficult to imagine a more intrusive invasion of privacy than what results from searching a person’s computer.

He also rejected theCrown’s submission that no specific prior authorization for a computer search was necessary because the court could review after thefact whether the search was reasonably conducted: [51] As I explained above, if computers give rise to particular privacy interests that distinguish them from other receptacles typicallyfound in a place, then s.8 requires those interests to be taken into account before the search takes place, not just after-the-fact, in order toensure that the state’s interest in conducting the search justifies the intrusion into individual privacy.

In effect, the privacy interests atstake when computers are searched require that those devices be treated, to a certain extent, as a separate place. [113] Following up on the Supreme Court of Canada’s characterization of the high privacy interests in searches of computers/cellularphones, Cromwell J. in R. v. Fearon, 2014 SCC 77 , [2014] 3 S.C.

R. 621, reviewed law enforcement’s common law power tosearch cellular telephones found on a suspect, incident to a lawful arrest of that person. [114] Cromwell J. observed that prior to Fearon, there were “at least” four different approaches to this issue: the common law searchpower incident to a lawful arrest permitted the search of a cell phone, provided there was a nexus between the arrest and the search;cursory searches of the cellular phone are permitted; data dump searches are not permitted; and finally, they [search of cell phoneincident to a lawful arrest] are not permitted except in exigent circumstances. [Fearon, para. 2.] [115] With these different approaches requiring some resolution, the Supreme Court of Canada was faced with determining whetherthe “public’s interest in being left alone by government must give way to the government’s interest in intruding on the individual’sprivacy in order to advance its goals, notably those of law enforcement”: Hunter v.

Southam Inc., [1984] 2 S.C.R. 145, at pp. 159-60, (SCC). [Fearon, para. 3.] [116] Cromwell J. concluded that the balance between the competing interests could be struck, whereby searches of cell phonesincident to a lawful arrest would only be permitted where the search (both what is searched and how it is searched) is “strictly”incidental to the arrest, and the police keep detailed notes about the search. [117] In Fearon, the accused and one other person were alleged to have been involved in an armed robbery of a jewellery merchantwho was loading her car with jewellery at the time she was robbed. Mr.

Fearon was arrested later that evening and searched incident tothe arrest, where the police located a cell phone in his pants. Within two hours of the arrest the phone was searched and police found adraft text message that referenced jewellery and the words “we did it”, along with a photo of a handgun that ultimately matched a gunfound in the getaway car. [118] Chief Justice Lamer discussed the scope of the common law search power in R. v. Caslake, (SCC), [1998] 1S.C.R. 51, where he noted that the breadth of this power was inevitably fact specific.

It was dependent on the circumstances of thearrest, including what charge(

s) the search related to. The scope of the search power was informed by the nature of the search, the placeof the search and the time of it relative to the arrest. [119] Cromwell J. described the framework set out in R. v. Golden, 2001 SCC 83 (which related to strip searches) to determinewhether the common law power to search incidental to a lawful arrest (of cellular devices) was consistent with the “Charter right to beprotected against unreasonable search and seizure”.

In order to undertake this difficult balancing, state interests in effective lawenforcement and individual privacy interests had to be carefully considered. [120] At para. 16 of Fearon, Cromwell J. described the common law search power incidental to a lawful arrest as “extraordinary”: The power to search incident to arrest not only permits searches without a warrant, but does so in circumstances in which the grounds toobtain a warrant do not exist.

The cases teach us that the power to search incident to arrest is a focussed power given to the police so thatthey can pursue their investigations promptly upon making an arrest. The power must be exercised in the pursuit of a valid purposerelated to the proper administration of justice. The central guiding principle is that the search must be, as the case law puts it, trulyincidental to the arrest. [121] Mr. Justice Cromwell then reviewed the cases that have considered the issue of the scope of the common law search powerincidental to a lawful arrest.

In particular, he reviewed cases where it was argued that the power to search should be restricted orabrogated, given the nature of the intrusion. I have summarized many of those cases below, as they are illustrative of how the SCC hasstruck a balance between individual privacy interests and legitimate state interests in effective law enforcement. As I must ultimatelyundertake a balancing exercise in this case in the context of individual privacy rights and the interest of the state in preserving its safetyand the economic integrity of its borders, it is helpful to review those cases. (

c) Summary of the common law search power incident to a lawful arrest

[122] In Cloutier v. Langlois, (SCC), [1990] 1 S.C.R. 158, L’Heureux-Dubé J. described the purpose of the broadpower to search as necessary to “guarantee the safety of the police and the accused, prevent the prisoner’s escape or to provide evidenceagainst him”. The power to search was limited and focussed by the requirement that the arrest was lawful, the search must be related tothe purpose for which the person was arrested or for safety, and the search must be conducted reasonably. [123] In R. v.

Stillman, (SCC), [1997] 1 S.C.R. 607, the power to search was reviewed in the context of seizingbodily substances and teeth impressions. The Supreme Court of Canada limited the common law search power because, in the case ofbodily substances, they found that it “invades the area of personal privacy essential to the maintenance of … human dignity” and was“much more serious” than a search of a person’s home or office. [Fearon, para. 20.] Additionally, as noted by Mr. Justice Cromwell atpara. 49 in Stillman, there was no pressing need to obtain this evidence as the samples would not disappear. [124] Mr.

Justice Cromwell in Fearon, also reviewed the SCC’s decision in Golden, where the issue before the SCC was whether thecommon law search power incident to a lawful arrest extended to strip searches: … because of the intrusive nature of a strip search as compared with the frisk search in Cloutier, a higher degree of justification wasrequired. A serious infringement of privacy and personal dignity was “an inevitable consequence of a strip search”: para 99.

In additionthe Court noted that strip searches are rarely required to be done promptly given the low risk of disposal or loss of evidence.” [Fearon,para. 23.] [125] Ultimately, in Golden, the SCC concluded that strip searches incident to a lawful arrest were only permissible “as an incident toa lawful arrest for the purpose of discovering weapons in the detainees possession or evidence related to the reason for arrest” and“police had reasonable and probable grounds for concluding that a strip search is necessary in the particular circumstances of the arrest”:Golden, at paras: 98-99. [Fearon, para. 24.] [126] In R. v.

Nolet, 2010 SCC 24, Mr. Justice Binnie upheld the common law search power in the context of a vehicle searched morethan two hours after the arrest, affirming the importance of this power, where “the police attempt to achieve some valid purposeconnected to the arrest”, including “ensuring the safety of the police and the public, the protection of evidence from destruction at thehands of the arrestee or others, and the discovery of evidence”.

The “important consideration is the link between the location andpurpose of the search and the grounds for the arrest, para. 49, Nolet.” Exigence and reasonable and probable grounds are not required. Linkage to the offence is required. [Fearon, para. 25 .] [127] Mr. Justice Cromwell concluded that the specific search of Mr.

Fearon’s phone was truly incidental to a lawful arrest as thesearch was “directed at public safety” (finding the gun), locating the stolen jewellery and obtaining evidence of the robbery. [Fearon,para. 33.] [128] In Fearon the majority of the Court rejected the restricted approach that a search of a cellular phone incident to a lawful arrestshould not be permitted except in exigent circumstances. They concluded that the search of a cellular phone may well serve importantlaw enforcement objectives. Consequently, it would be unduly restrictive to require law enforcement to have grounds prior to thissearch.

Additionally, it was noted the search could only take place after the police had the requisite grounds to arrest the suspect. [129] It was then necessary for the majority of the Court to assess “individual and societal interests in privacy and the extent to whicha cell phone search incident to arrest interferes with those interests” in determining what, if any, limitations should be placed on thecommon law power to search a cell phone incidental to an arrest. [Fearon, para. 50.] [130] Mr.

Justice Cromwell described the special privacy interests associated with cell phones at para. 51: [51] It is well settled that the search of cell phones, like the search of computers, implicates important privacy interests which aredifferent in both nature and extent from the search of other “places”: R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, at paras. 38 and 40-45. It is unrealistic to equate a cell phone with a briefcase or document found in someone’s possession at the time of arrest.

As outlined inVu, computers – and I would add cell phones – may have immense storage capacity, may generate information about intimate details ofthe user’s interests, habits and identity without the knowledge or intent of the user, may retain information even after the user thinks thatit has been destroyed, and may provide access to information that is in no meaningful sense “at” the location of the search: paras. 41-44. [131] Cromwell J. noted that cell phones were subject to special privacy concerns. At paras. 54-57, he sets out these concerns.

Heconcludes that while the invasion of privacy in a cell phone search is potentially very intrusive, not every search of a cell phone/computerwill be this invasive. By contrast, strip searches by their very nature are inevitably highly invasive, intrusive, and will always engage ahigh level of stigma: [54] First, while cell phone searches – especially searches of “smart phones”, which are the functional equivalent of computers – mayconstitute very significant intrusions of privacy, not every search is inevitably a significant intrusion.

Suppose, for example, that in thecourse of the search in this case, the police had looked only at the unsent text message and the photo of the handgun. The invasion ofprivacy in those circumstances would, in my view, be minimal. So we must keep in mind that the real issue is the potentially broadinvasion of privacy that may, but not inevitably will, result from law enforcement searches of cell phones. [Emphasis added.] [55] In this respect, a cell phone search is completely different from the seizure of bodily samples in Stillman and the strip search inGolden.

Such searches are invariably and inherently very great invasions of privacy and are, in addition, a significant affront to humandignity. That cannot be said of cell phone searches incident to arrest. [56] Second, we should bear in mind that a person who has been lawfully arrested has a lower reasonable expectation of privacy thanpersons not under lawful arrest: Beare, at p. 413. [57] Third, the common law requirement that the search be truly incidental to a lawful arrest imposes some meaningful limit

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