Ontario Court of Appeal rules that random or unsubstantiated searches are unconstitutional—reasonable suspicion required

For a goodly amount of time, concern has been expressed about the tendency of Canada Border Services Agency (CBSA) officers and other border officials to search devices (phones, tablets, laptops) in the possession of people arriving at Canada’s border, without having to demonstrate any grounds for so doing. In particular, s. 99(1)(a) of the federal Customs Act permits, on its face, officers to search “goods that have been imported” without judicial authorization or grounds for the search whatsoever. It is this provision that has been invoked as authority for device searches, despite the intense privacy concerns that attach to devices and their contents, and the Crown’s position has seen pushback in litigation, before Parliament and in the literature.

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