Examining a traveller’s personal digital devices, like cell phones and laptops, is critical to protecting Canada’s borders and intercepting prohibited material like child pornography. These examinations are both extremely rare – affecting a mere 0.009 percent of all travellers entering Canada in 2021 – and highly effective, uncovering a contravention in 27 percent of all cases. As all examinations of personal digital devices must respect privacy rights under the Canadian Charter of Rights and Freedoms, the Government of Canada is moving to create clear and stringent standards surrounding them.
Today, the Honourable Senator Marc Gold, Government Representative in the Senate, on behalf of Marco Mendicino, Minister of Public Safety, introduced a Bill in Parliament to strengthen the framework governing the examination of personal digital devices by Canada Border Services Agency (CBSA) officers and United States Customs and Border Patrol preclearance officers operating in Canada.
The Bill will create standards that must be met before a traveller’s device can be examined. It proposes changes to the Customs Act and the Preclearance Act, 2016 that further protect the rights of travellers with respect to examinations of their personal digital devices, without compromising the ability to secure our borders.
The Bill proposes legislative changes that include:
- Establishing a new threshold that must be met before the initiation of a personal digital device examination, which requires reasonable general concern;
- Creating an authority to examine documents on personal digital devices in the Customs Act and the Preclearance Act, 2016. This is required to differentiate these devices from other goods, including commercially imported/exported digital devices; and,
- Requiring specific purpose that formally limits examinations to regulatory border-related examinations.
The Government of Canada recognizes that personal digital devices can contain sensitive personal information. We will ensure that the privacy of Canadians and those wishing to come here is always protected. Conducted sparingly and selectively, these examinations are highly effective for the CBSA to protect the health, safety and security of Canadians. Such examinations are used to screen for and intercept prohibited and harmful goods, such as child pornography and obscenity. The Government is committed to advancing this legislation expeditiously.
Protecting the safety and security of Canadians – including their right to privacy – is our government’s top priority. The proposed updates to the legislation will institute clear and stringent standards that must be met before a traveller’s device can be searched, while ensuring that the CBSA can continue to fight serious crimes like child pornography and keep our borders secure.
– The Honourable Marco E. L. Mendicino, Minister of Public Safety
- In October 2020, the Court of Appeal of Alberta ruled in R v Canfield and R v Townsend that the examination of the content of personal digital devices by the CBSA is unconstitutional under the Customs Act (CA), as paragraph 99(1)(a) imposes no limits on such examinations.
- These offences include prohibited goods that pose a threat to public safety (e.g., child pornography, obscenity, etc.), and undervalued or undeclared goods.