Electronic Devices at the Border: The Next Frontier of Canadian Search and Seizure Law?

Abstract

Over the last several years the Supreme Court of Canada has developed its jurisprudence regarding the search and seizure of electronic devices, applying s.8 of the Canadian Charter of Rights and Freedoms in such a way as to assert and protect a significant amount of privacy in the devices and their data. Recent cases regarding the search of devices at Canada's borders, however, do not reflect this case law. This is a situation made all the more complex by the more generally attenuated expectation of privacy in the border context, and is worthy of inquiry. Using a pending border case as a leaping-off point, this paper explores how s.8 should be applied to searches of electronic devices in the possession of people entering Canada, concluding that an appropriate analysis would impose more robust privacy protection than has been seen to date. It also examines the issue of whether individuals can be compelled to unlock devices or surrender passwords during border searches.