In sad but unsurprising news, Canada is no better than the US when it comes to ignoring its citizens’ rights at the border. The Canada Border Security Agency (CBSA) has also been given the green light to perform invasive, warrantless searches of people’s devices at the border. And, like its US counterpart, it seems to be using this power frequently.
The CBSA said that between November 2017 and March 2019, 19,515 travellers had their digital devices examined, which represents 0.015 per cent of all cross-border travellers during that period.
Whether or not these numbers are on the rise is still a mystery. The CBSA only began tracking this statistic in late 2017 after Canada’s privacy commissioner opened an investigation into this practice. Concerns were raised about the CBSA’s searches, which involved cloning devices for later examination and seizing devices if travelers refused to hand over passwords.
Unfortunately for the CBSA, it searched the wrong person’s device. A legal challenge is being raised by someone well-equipped to raise legal challenges, as CBC News reports.
“The policy’s outrageous,” said Toronto business lawyer, Nick Wright. “I think that it’s a breach of our constitutional rights.”
His thoughts follow a personal experience. After landing at Toronto’s Pearson Airport on April 10, he said the Canada Border Services Agency (CBSA) flagged him for an additional inspection — for no stated reason.
Wright had just returned from a four-month trip to Guatemala and Colombia where he studied Spanish and worked remotely. He took no issue when a border services officer searched his bags, but drew the line when the officer demanded his passwords to also search his phone and laptop.
Wright refused, telling the officer both devices contained confidential information protected by solicitor-client privilege.
The end result was CBSA agents confiscating Wright’s phone and laptop with the assurance they would be sent to a government lab in order to have their password protection cracked. Replacing them cost Wright $3,000.
Wright claims this is a violation of Canada’s charter of rights. Canadian courts, like those in the US, have decided no involuntary sacrifice of rights is too great when national security is on the line. The CBSA, for its part, has greeted the tech future by pretending it’s still 1975, and that searching a phone is no different than searching a briefcase or the trunk of a car.
For all of that, this is probably the right time to challenge this custom of customs officials. The nation’s top court has already drawn a distinction between briefcases and cellphones, saying the latter contains vast amounts of information that “touches a person’s biological core.” And at least one provincial court has declared Canadians’ rights are not null and void simply because they’re at a border crossing.
The CBSA’s statement to CBC News says these suspicionless searches that can result in the indefinite seizure of citizens’ devices are “reasonable and necessary” to keep Canada secure. But they seem to be neither. There’s nothing “reasonable” about invasive searches completely divorced from articulable suspicion. That’s the very definition of “unreasonable.” And as for necessity, all the CBSA has to offer is that 38% of its 19,000+ device searches “uncovered evidence of customs-related offences.” This means most searches don’t recover any evidence of anything and that things like undeclared goods are somehow threatening to the country’s security.
It’s time for border agencies to stop pretending the only way to secure a nation is to discard its citizens’ rights. And it’s time for courts to stop deferring to national security mantras and stick up for the rights they — and the rest of the government — are supposed to be protecting.