ALG's Samara Secter and Jocelyn Rempel were counsel to the Canadian Civil Liberties Association as intervener in a recent case from the Ontario Court of Appeal on the scope of search powers during border crossings. The Court released its reasons in R. v. Pike and Scott, 2024 ONCA 608 on August 9, 2024. The Court ruled that section 99(1)(a) of the federal Customs Act violates the Charter right against unreasonable search and seizure because the law "authorizes border officers to search some of the most private information imaginable on the lowest possible standard to justify a search, namely that in the border officers’ own minds, they were sincerely trying to find evidence of border law violations." Section 99(1)(a) allows law enforcement officers to examine "any goods" crossing the border. Chief Justice Tulloch's reasoning in Pike and Scott rested in large part on the fact that the law would allow searches of digital devices including highly personal and intimate contents.
The Court of Appeal accepted ALG's submission on behalf of the CCLA that the courts cannot expect individuals not to travel with digital devices, which are a necessity of modern life, or avoid crossing borders, which is a constitutional right under section 6 of the Charter. Chief Justice Tulloch noted:
Because digital devices are our “constant companion[s]” travellers need to bring them across borders to work and communicate. As the trial judge ruled, leaving them behind is not a meaningful choice. Neither is declining to leave and re-enter Canada, which, as the intervener Canadian Civil Liberties Association (the “CCLA”) submits, is not merely a choice but a section 6 Charter right. Just as “Canadians are not required to become digital recluses” to preserve their privacy, they also should not have to surrender the ability to enter and leave Canada with an indispensable instrument of modern life.
To learn more about the ruling and the CCLA's argument, please visit the Court of Appeal's decision.