Demand for passwords does not amount to self-incrimination; Alberta Court of Appeal finds child porn admissible despite Charter breach
In R. v. Al-Askari, the Alberta Court of Appeal rendered a decision on the continuously controversial issue of searches of electronic devices at Canada’s borders. The accused was a refugee claimant of Palestinian nationality who made a refugee claim at the Canada-US border in Coutts, Alberta. As part of routine screening under the Immigration and Refugee Protection Act (IRPA), a CBSA official asked for and received the passwords for the accused’s two cell phones, on one of which she saw child pornography. She then stopped the search and arrested him. Subsequent warranted searches of the phones and several other electronic devices revealed hundreds of child pornography images and videos. At trial, the accused made an unsuccessful Charter challenge to the initial search of the two phones, and was convicted of importing and possessing child pornography. He appealed the finding on the search and also (with leave from the Court of Appeal) contested the device search subsequent to the search of the phones.
While most “border search” cases have concerned searches conducted under the Customs Act, the Court of Appeal carefully explored the legislative context of this search, arising from the IRPA. It identified two possible provisions under which a search of a refugee claimant could be authorized: under section 139, a search may be conducted if the officer believes on reasonable grounds that the person has not revealed their identity, has undisclosed information about their identity, or has committed or has evidence about particular offences (human smuggling/trafficking, etc.). The officer had testified that she had been looking for evidence of inadmissibility on the basis of security, criminality or identity. Thus s. 130 had not authorized the search.
The second was section 16 of IRPA. The Court held that 16(1), which requires the person to produce all information relevant to their refugee claim, did not apply. Section 16(3) allows officers to obtain “any evidence that may be used to establish their identity or compliance with this Act.” The Court held that the Crown’s argument that this crated a broad and general search power was not in keeping with the need for a constitutionally-protected core of privacy in electronic devices, even at the border where the expectation of privacy is somewhat attenuated. Their findings are worth setting out in some detail, in part because the Court reviewed its earlier finding in R. v. Canfield which dealt with e-device searches under the Customs Act (but was released while this newsletter was on a COVID-required hiatus):
[48] The Crown reads s 16(3) more broadly as providing an unqualified search power. As Mr Al Askari emphasizes, this would create one of the broadest search powers in Canadian law. Without any restraint or need to provide an articulated basis, the officer could require a strip search, cavity search, DNA seizure, and encryption passwords, as long as the search was directed toward establishing the applicant’s identity or to ensure compliance with IRPA.
[49] The more limited approach suggested by Mr Al Askari is supported by R v LE, 2019 ONCA 961, paras 66-67, 382 CCC (3d) 202, leave to appeal dism’d 2020 CanLII 33846 (SCC). The Court of Appeal for Ontario concluded that s 16(3) creates a qualified statutory search power.
[50] LE involved a search of a cell phone of the accused who was in Canada illegally and subject to a removal order. The officer had a reasonably grounded belief that the accused was attempting to contravene her removal order and had wrongly made phone contact with her husband. The officer expressly relied upon s 16(3) as the source of authority for the search: para 44.
[51] The court held that the search was lawful and the scope of the search was restricted to establishing the person’s identity or determining compliance with IRPA. Although there are procedural and substantive limits on this search process, there is no limit on the subject matter of the search since the officer is permitted to obtain “any evidence” as long as that evidence is to establish the person’s identity or determine compliance with IRPA: paras 68-69.
[52] The court suggested that the search power under s 16(3) requires a “reasonable grounds belief”, para 70:
In my view, s. 16(3) authorized the CBSA officer’s search of the appellant’s cell phone. The appellant was a foreign national; she had been arrested and detained and was subject to a removal order. The CBSA officers sought evidence that the appellant was attempting to contravene her removal order. They sought evidence from the LG Nexus cell phone in the appellant’s possession on arrest, to determine the appellant’s compliance (or lack thereof) with the IRPA, having information that could support a reasonable ground belief the appellant was obstructing her removal from Canada. [emphasis added]
[53] This approach is consistent with R c Patel, 2018 QCCQ 7262, paras 64-66. It held that a cell phone search of a refugee claimant was authorized under ss 16(1), 16(3), 139 and 140 of IRPA upon which the officer explicitly relied. The search was necessary to determine the accused’s true identity because of bona fide concerns about his identification documents and the answers he provided when questioned.
[54] Both LE and Patel are examples of what is contemplated by the text of s 16(3). Patel was concerned with further evidence of identity. LE addressed evidence of “compliance with the Act” as the accused was subject to a removal order under the IRPA. Neither case involved a broad suspicionless search for criminality.
[55] A finding that s 16(3) does not authorize suspicionless searches is consistent with this Court’s decision in Canfield.
[56] At issue in Canfield was the constitutionality of the Customs Act provision that permits the routine inspection of “goods”: s 99(1)(a). Earlier jurisprudence treated the search of electronic devices as coming within the definition of “goods” under s 99(1)(a) and falling within the first category of Simmons: routine searches that could be undertaken without any individualized grounds. This Court held that s 99(1)(a) of the Customs Act was unconstitutional to the extent that it imposed no limits on searches of electronic devices at the border. The definition of “goods” in s 2 of the Customs Act was deemed of no force or effect insofar as the definition included the contents of personal electronic devices for the purpose of s 99(1)(a): para 7. Notably, this Court said that not all searches of phones are the same; some will be more invasive than others: para 34. But routine, suspicionless searches of these devices are not constitutional under s 99(1)(a).
[57] This Court went on to say, paras 75-76, that a justified search of a personal electronic device needs a threshold requirement of suspicion, but was reluctant to define the boundaries of that threshold, preferring to leave that question to Parliament:
…To be reasonable, such a search must have a threshold requirement…[I]n our view the threshold for the search of electronic devices may be something less than the reasonable grounds to suspect required for a strip search under the Customs Act … [but] … we decline to set a threshold requirement for the search of electronic devices at this time. Whether the appropriate threshold is reasonable suspicion, or something less than that having regard to the unique nature of the border, will have to be decided by Parliament and fleshed out in further cases. However, to the extent that s 99(1)(a) permits the unlimited search of personal electronic devices without any threshold requirement at all, it violates the protection against unreasonable search in s 8 of the Charter.
We hasten to add that not all searches of personal electronic devices are equal …
[58] This Court was alive to the reality that travellers often store relevant documents for customs purposes on their electronic devices. Although an unlimited and suspicionless search of a device would breach the Charter, some documents stored on devices must be made available to border agents as part of the routine screening process. For example, receipts and other information relating to the value of imported goods and travel-related documents, would be essential to routine screening. “The review of such items on a personal electronic device during a routine screening would not constitute an unreasonable search under s 8”: para 79.
[59] Routine and suspicionless searches of personal electronic devices under IRPA must be limited to the purposes provided in the text: identification and admissibility. Persons have a higher privacy interest in their devices even at the border. Not all searches of devices are overly intrusive, and relevant documents are often stored on these devices. It follows that, under s 16, officers may review documents on personal electronic devices where necessary for identification and admissibility purposes. For example, an officer could ask a refugee claimant to locate the relevant documents on their device instead of independently searching for them. In this situation, a search would only occur if the person could not meet the request.
[60] In addition, Canfield followed the guidance from R v Fearon, 2014 SCC 77, paras 74-83, [2014] 3 SCR 621, regarding tailored and precise search protocols. The court warned against open-ended searches, even if done for statutorily prescribed purposes. Thus, a justifiable search of a personal electronic device for the purposes of identification and admissibility must limit the invasion of privacy by conducting the search in a manner that is tailored, and only where the officer is unable to otherwise satisfy themselves of identity and admissibility.
Here, the CBSA officer had not had any indicators of inadmissibility or criminality when she conducted the search, and explicitly stated that suspicion had arisen only when she viewed the child porn images on the phone. The Court concluded its analysis by finding that a search under s. 16(3) must be grounded in “a reasonable suspicion with respect to the claimant’s identity, admissibility, or other compliance with the IRPA.” Accordingly, both the initial search of the phones and the subsequent search of the other devices had breached s. 8 of the Charter as unreasonable searches and seizures.
The accused also argued that by demanding his phone passwords the officials had breached his right against self-incrimination under s. 7 of the Charter. Relying on the 2006 decision by the Ontario Court of Appeal in R. v. Jones, as well as its own decision in Canfield, the Court noted that there is no ab initio right to remain silent during inspection at the border, due to its unique nature. While questioning grounded in some “strongly particularized suspicion” that created a detention of the person might engage the protection against self-incrimination, routine border screening did not. Here, the screening had been routine and no detention had arisen.
Having found the searches unconstitutional, the Court of Appeal nonetheless refused to exclude the evidence under s. 24(2) of the Charter. The state of the law at the time of the search—six years earlier—had been in flux and the officer’s belief that her search was permissible had been reasonable. The examination of photos was intrusive upon the accused’s privacy, particularly as he was religiously concerned about people viewing photos of female members of his family. However, the photos were highly reliable real evidence and society’s interest in trial on the merits had been high.
