Ontario Court Rules Law Authorizing Searches of Phones and Laptops at Borders Unconstitutional

A recent ruling by Ontario’s top court states that a law permitting border agents to search electronic devices such as computers and phones violates Canadians’ charter rights. The court has directed Parliament to revise the law within the next six months.

The ruling highlights that the Customs Act breaches this right by granting border agents the authority to inspect incredibly private information solely based on suspicion.

Justice Tulloch mentioned in the decision that the law infringes on section 8 of the Charter and is deemed unconstitutional. He argued that the Crown failed to justify the law’s minimal requirement for search justification when a higher standard already exists for comparable scenarios.

He proposed that an alternative with fewer restrictions, where border agents depend on factual evidence indicating potential law breaches rather than vague “good faith purpose,” could maintain the law’s mandate without compromising security.

“The border is not devoid of Charter rights and cannot be a space where intrusive digital device searches are conducted almost arbitrarily,” Tulloch stated.

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“Reasonable suspicion necessitates border officers to rely on verifiable facts that support potential border violations which can be cross-examined by courts. This ensures that border officers don’t act on mere guesses, intuition, or unconfirmed tips of unknown reliability,” the court explained.

The ruling also revealed that approximately 62 percent of the 31,579 electronic device searches performed by border agents between 2017 and 2020 did not uncover any legal violations. This massive infringement on innocent individuals’ privacy strongly suggests that the law is “unjust,” according to the judges.

The justices’ ruling was linked to an appeal challenging the sentences of two Canadian citizens, Jeremy Pike and David Scott, whose electronic devices were searched at the border and found to contain child pornography.

Although the court acknowledged the law’s unconstitutionality, it emphasized that this did not absolve Pike and Scott of the severe child-related charges against them.

The court disagreed with a lower court’s decision to exclude the content from Pike’s devices as evidence, stating that this ruling could not be upheld.

A retrial was ordered, with the Crown’s appeal against Pike’s acquittal being successful, enabling the device’s content to be used as evidence.

While the evidence from Scott’s devices was admissible in his trial, he was sentenced to 23 months of home confinement. The appeals justices expressed that he should have been given a three-year jail term for his offenses.

However, at this time, they opted not to impose jail time on him since he had already served more than half of his sentence.

The appeals court dismissed Scott’s challenge against his conviction.