Briefcase Law- Are Border Guards in Violation of the Charter?

As a Canadian what can you expect while crossing the border? What rights do you have? Can you refuse a search of your car? Or of your phone?

The answer is no, but the law is currently gray.

A Manitoba case last year changed the way the Supreme court looks at the power of border guards, and their ability to check electronic devices at border crossings. R vs Vaillancourt is just 1 of 4 cases that have changed the way that the Customs laws are interpreted.

The Customs Act is a longstanding set of laws that allows border agents to search pretty much all personal items- including personal electronic devices. These agents are able to act on suspicion immediately, meaning they don’t need a subpoena or warrant.

The prosecution in all 4 cases has focused on Section 99(1)(a) of the Customs Act. This section of the act allows border officers “to at any time up to the time of release, examine any goods that have been imported.” The government considers electronic devices to fall under this definition of goods, stating it is no different from papers in a briefcase.
The interpretation of what importable goods are is under interpretation. The defence lawyers in all 4 cases have argued that personal electronics are more than just ‘goods’, and by searching and seizing them the border guards are violating Charter rights.

In the case of R. vs Vaillancourt, the defense argued that s.8 of Vaillancourt’s charter rights were violated, which is the charter’s protection from unreasonable search and seizure. Vaillancourt had arrived at the border with his phone on the dashboard running a GPS map. The border guard seized his phone to see if his map matched his story. The border guard then proceeded to check the rest of his phone where he found child pornography. Vaillancourt was then arrested and charged.

The defense in this case and the other 4 cases argued that the Canadian Customs legislation is ‘briefcase law’ because it predates smartphones and laptops. The Canadian Civil Liberties Association (CCLA) argues that the Customs Act is a pre-smartphone statue, as it “contains no provisions applying specifically to phones or digital devices. Nowhere does it even use the words ‘phone’ or ‘digital device.’ It does not even refer to digital storage. It is briefcase law.”

Basically, the argument for Briefcase law is that electronics can tell a lot more about a person than the information that can be found in a briefcase or filing cabinet. Phones and laptops contain vast amounts of information, as you can learn a lot from the photos they have, their social media pages, the apps they downloaded, etc. Also, laptops storage goes beyond the actual device, as the cloud can access even more information.

The judges of the supreme court have agreed that laptops and phones can contain logs of data that can be used to retrace a person’s steps in a way that physical documents cannot. However, the government stands behind its claim that an electronic device is an ‘importable good’. The government feels that people crossing the border should have no reasonable expectation of privacy with personal devices.

The CCLA argues that searching a phone or other personal device should fall under the same procedures as a search of a home. “It is difficult to imagine a more intrusive invasion of privacy than the search of a personal or home computer”. A warrant or subpoena is needed to search a home, they argue that personal devices should also follow the same protocol.

The government disagrees with this, stating that people should not expect privacy while crossing the border.

As it stands, the Canadian and U.S government do have the right to check your phone, to learn more read our blog post “Can border guards check your phone”

Let us know your thoughts and what interpretation of the longstanding law is right.

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