Nick Wright is a business lawyer based in Toronto and elected bencher with the Ontario Law Society. He arrived back in his home country on April 10 after a four-month trip to Guatemala and Colombia, where he was studying Spanish and working remotely, according to the Canadian Broadcasting Corporation (CBC).
Wright told the CBC that he was picked for additional inspection at Toronto’s Pearson Airport. An officer searched his bags and then asked for his passwords to inspect his phone and laptop. He refused and explained that both devices had confidential information from his clients, which is protected by solicitor-client privilege.
"The policy's outrageous," said Toronto business lawyer, Nick Wright. "I think that it's a breach of our constitutional rights." https://t.co/W6TojzBJUD
— CBC Toronto (@CBCToronto) May 5, 2019
The Canada Border Services Agency (CBSA) officer proceeded to confiscate the items and said that a government lab would try to crack the passwords and inspect the devices.
Wright expressed concern over how border security in Canada was able to search devices and luggage without a warrant.
“The policy’s outrageous,” he told the Canadian broadcaster. “I think that it’s a breach of our constitutional rights.”
The CBC reported that Wright has spent about C$3,000 ($2,227) to replace the devices while he awaits from his confiscated items to be returned to him. He also submitted a complaint to the CBSA, and demanded that his phone and laptop be returned as well as compensation for his being forced to temporarily replace them.
Canada’s Laws on Border Inspection, Privacy
According to Subsection 99(1) of the Canada’s Customs Act, CBSA officers can search any items being imported into Canada—for no apparent reason. Furthermore, the term “goods” means “any documents in any form,” according to subjection 2(1) of the Customs Act.
Straight.com reported that in June 2015, the CBSA issued an operational bulletin defining digital devices as “goods”—and holds that it can examine goods under the Customs Act and the Immigration and Refugee Protection Act.
The CBSA’s Operational Bulletin has imposed some limits on its searches of phones and computers at the border, but according to Mondaq.com, these are not legally enforceable by third parties (such as travelers) in court.
CBSA’s Operational Bulletin “OB PRG-2015-31” states that officers should exercise respect for the traveler’s privacy as much as possible when conducting checks on their digital devices, and that they must also be able to explain their reasoning when they ask to check the devices.
Section 8 of the Canadian Charter of Rights and Freedoms says that everyone has the right to be protected against unreasonable search or seizure.
“In my view, seizing devices when someone exercises their constitutional right is an affront to civil liberty,” Wright told the CBC.
The Office of the Privacy Commissioner of Canada states: “At border controls, Canada Border Services Agency (CBSA) officers have widespread powers to stop and search people, and examine their baggage and other possessions including devices such as laptops and smartphones.
“These activities are carried out under the authority of Canada’s Customs Act; a warrant is not required.”
However, it continues: “The Canadian courts have not yet ruled on whether a border officer can compel a person to turn over their password and on what grounds, so that their electronic device may be searched at a border crossing.
“While the law is unsettled, CBSA policy Footnote 1 states that examinations of personal devices should not be conducted as a matter of routine; such searches may be conducted only if there are grounds or indications that “evidence of contraventions may be found on the digital device or media.”
A spokesperson for Public Safety Minister Ralph Goodale told CBC in an email that digital searches “should not be routine” and that “officers may only conduct a search if there are multiple indicators that evidence of contraventions may be found on a device.”
But Wright asserted that he wasn’t given a reason when the officer demanded to check his device.
“There were no factors that I’m aware of that would justify the searchers,” he told the CBC.