[1]               The appellants, Mr. Canfield and Mr. Townsend, were each convicted of possession of child pornography. The evidence against them included photographs and videos retrieved when their personal electronic devices (a cell phone and laptop computer, respectively) were searched by Canadian Border Services Agency (CBSA) at the Edmonton International Airport. Both appellants are Canadian citizens, and both were referred for secondary inspection upon re-entering Canada. Their electronic devices were searched pursuant to s 99(1)(a) of the Customs Act, RSC 1985, c 1.

[2]               The only issues at their trials, which were heard together, were whether the searches of their devices offended the Charter of Rights and Freedoms, whether the evidence of child pornography found on the devices was obtained in breach of ss 7, 8, 10(a) and 10(b) of the Charter, and, if so, whether the evidence should be excluded pursuant to s 24(2) of the Charter.

[3]               The leading authority on searches conducted at the border is R v Simmons, 1988 CanLII 12 (SCC), [1988] 2 SCR 495, 55 DLR (4th) 673. The Court in Simmons recognized that the degree of personal privacy reasonably expected by individuals seeking to enter Canada is lower than in most other situations. Three distinct types of border searches, with an increasing degree of privacy expectation, were identified: (1) routine questioning which every traveller undergoes at a port of entry, sometimes accompanied by a search of baggage and perhaps a pat or frisk of outer clothing; (2) a strip or skin search conducted in a private room after a secondary examination; and (3) a body cavity search. The first category was viewed as the least intrusive type of routine search, not raising any constitutional issues or engaging the rights protected by the Charter: Simmons at para 27.

[4]               Section 99(1)(a) of the Customs Act permits the routine examination of any “goods”. The search of personal electronic devices, such as laptop computers and cell phones, has been treated as coming within the definition of “goods” for the purposes of s 99(1)(a), and as being included in the first Simmons category of routine searches that can be undertaken without any individualized grounds.

[5]               The trial judge here took the same approach to the search of the appellants’ personal electronic devices. He declined the appellants’ request to revisit Simmons in relation to those searches, and concluded that s 99(1)(a) of the Customs Act is valid and constitutional and the evidence of child pornography found on the appellants’ devices was admissible as it had not been obtained in breach of their Charter rights. He further concluded that, if he was wrong, the evidence should not be excluded under s 24(2) of the Charter: R v Canfield, 2018 ABQB 408.

[6]               A binding precedent, such as Simmons, “may be revisited if new legal issues are raised as a consequence of significant developments in the law or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate”: Canada (Attorney General) v Bedford, 2013 SCC 72 at para 42. There have been significant developments, both in the technology of personal electronic devices and in the law relating to searches of such devices, since Simmons was decided in 1988. A series of cases from the Supreme Court of Canada over the past decade have recognized that individuals have a reasonable expectation of privacy in the contents of their personal electronic devices, at least in the domestic context. While reasonable expectations of privacy may be lower at the border, the evolving matrix of legislative and social facts and developments in the law regarding privacy in personal electronic devices have not yet been thoroughly considered in the border context.

[7]               For the reasons that follow, we are satisfied that the trial judge erred by failing to recognize that Simmons should be revisited to consider whether personal electronic devices can be routinely searched at the border, without engaging the Charter rights of those being searched. We have also concluded that s 99(1)(a) of the Customs Act is unconstitutional to the extent that it imposes no limits on the searches of such devices at the border, and is not saved by s 1 of the Charter. We accordingly declare that the definition of “goods” in s 2 of the Customs Act is of no force or effect insofar as the definition includes the contents of personal electronic devices for the purpose of s 99(1)(a). We suspend the declaration of invalidity for one year to provide Parliament the opportunity to amend the legislation to determine how to address searches of personal electronic devices at the border.

[8]               Following this declaration of invalidity, we find the appellants’ rights under s 8 of the Charter were infringed in the circumstances of this case. We also find the appellants were detained and their rights under s 10 were violated, and that statements made by them after detention are subject to protection under s 7 of the Charter. However, like the trial judge, we conclude the evidence should not be excluded pursuant to s 24(2) of the Charter.

[9]               The trial judge found that passengers arriving at an airport from outside Canada are directed to a Customs controlled area. Each passenger completes a Declaration Card, which provides information about the passenger and any goods being brought into Canada, and is questioned at the primary inspection line by a Border Services Officer (BSO) for approximately one to two minutes. If the BSO determines there are any “indicators” (such as the person’s demeanour, travel itinerary, and anything disclosed in the Declaration Card), the passenger may be sent for secondary screening, at which point an additional level of examination or investigation, including a search of personal electronic devices, may be conducted before a decision is made to release the traveller.

[10]           Mr. Canfield arrived at the Edmonton International Airport on a flight from Cuba on December 12, 2014. He was referred by a BSO for secondary screening because he was travelling alone, he travelled regularly to Cuba by himself, he had an overly friendly demeanour, and he referred to “women and Cuba and the beach”, which the BSO viewed as an indicator for sex tourism for women and children. Sex aids were found in his luggage. The BSO conducting the secondary search formed the belief that Mr. Canfield had child pornography on his phone. The BSO asked Mr. Canfield if there was child pornography on his cell phone, and Mr. Canfield responded that there was. The BSO asked Mr. Canfield to show him an image of child pornography, which he did. The BSO then conducted a more detailed search of the phone, and found more images of child pornography. Mr. Canfield was then arrested.

[11]           Mr. Townsend arrived at the Edmonton International Airport on a flight from Seattle on March 22, 2014. At the primary inspection line, he was referred for secondary screening because the BSO considered his three bags, five-month travel pattern and lack of employment to be unusual, and found his demeanour changed and he stopped making eye contact during initial questioning. At the secondary examination area, it was discovered that Mr. Townsend was in possession of 12 electronic devices, including a laptop computer. A BSO demanded the password for the laptop, which Mr. Townsend provided. The laptop was searched and images of child pornography were found on it. At that point, Mr. Townsend was arrested.

[12]           The appellants submit that the trial judge committed the following errors:

[13]           Questions of law, including the constitutional validity of legislation, whether the scope of a Charter right was correctly interpreted, and the sufficiency of reasons, are reviewed for correctness: Housen v Nikolaisen, 2002 SCC 33 at para 8; R v Malmo-Levine, 2003 SCC 74 at para 23; R v Mohamed, 2013 ABCA 406 at para 12.

[14]           For findings of fact, whether adjudicative, social, or legislative, the standard of review is palpable and overriding error: Canada (Attorney General) v Bedford, 2013 SCC 72 at para 56, [2013] 3 SCR 1101.

[15]           This appeal engages the constitutionality of s 99(1)(a) of the Customs Act. That section provides:

[16]           The word “goods” is defined in s 2(1) of the Customs Act as including “conveyances, animals and any document in any form”.

[17]           Section 98 permits an officer to search a person entering Canada “if the officer suspects on reasonable grounds that the person has secreted on or about his person” anything which would contravene the Customs Act (emphasis added).

[18]           At issue in Simmons was the constitutionality of ss 143 and 144 of the Customs Act, RSC 1970, c-40, which required that an officer have “reasonable cause” to conduct a body search (since repealed and replaced by s 98 of the Customs Act). The majority in Simmons drew a distinction between the degree of personal privacy expected at a border crossing as opposed to domestically, saying at para 49:

[19]           As has been noted, three distinct types of border searches were identified, at para 27:

[20]           The Court went on to note “that each of the different types of search raises different issues….it is obvious that the greater the intrusion, the greater must be the justification and the greater the degree of constitutional protection”: para 28.

[21]           Later decisions of the Supreme Court confirmed that “border crossings represent a unique factual circumstance for the purposes of a s 8 analysis” and that “decisions of this Court relating to the reasonableness of a search for the purposes of s 8 in general are not necessarily relevant in assessing the constitutionality of a search conducted by customs officers at Canada’s border”: R v Monney, 1999 CanLII 678 (SCC), [1999] 1 SCR 652 at paras 42–43, 171 DLR (4th) 1. See also R v Jacques, 1996 CanLII 174 (SCC), [1996] 3 SCR 312 at para 18, 139 DLR (4th) 223.

[22]           The three categories of search identified in Simmons have been characterized as “discrete categories and not a continuum”. Cases have been resolved by “classifying the search within a category identified in Simmons” to determine “the level of constitutional protection engaged”: R v Hudson (2005), 2005 CanLII 47233 (ON CA), 77 OR (3d) 561 at para 30, [2005] OJ No 5464 (CA).

[23]           The first Simmons category – that of routine searches that do not engage constitutional issues – applies to “goods” searched pursuant to s 99(1)(a); goods, as noted above, is defined to include “conveyances, animals and any document in any form”: s 2(1). In the border context, “goods” has been interpreted to include documents in electronic form on personal electronic devices, such as cell phones and personal computers: R v Bialski, 2018 SKCA 71 at para 111; R v Moroz, 2012 ONSC 5642 at para 20. Applying this law, the trial judge in this case concluded that the searches of the appellants’ electronic devices fell “within the first category of routine searches described in Simmons and thus did not engage s 8 of the Charter”: Canfield at para 49.

[24]           Section 8 of the Charter provides that everyone has “the right to be secure against unreasonable search and seizure”. The appellants submit that s 99(1)(a) of the Customs Act is unconstitutional and offends s 8 because it imposes no restrictions on the ability to search personal electronic devices. They argue that individuals, even those at the border, have a reasonable expectation of privacy with respect to their personal electronic devices and that Simmons should be revisited to the extent that it does not distinguish between the search of such devices and the search of other goods. The trial judge, however, concluded that Simmons “remains binding authority” (para 49) and he declined to reconsider the matter.

[25]           The first issue before us is whether the conclusion of the Court in Simmons should be revisited, insofar as it applies to searches of personal electronic devices.

[26]           The doctrine of legal precedent is “‘fundamental to our legal system. It provides certainty while permitting the orderly development of the law in incremental steps. However, stare decisis is not a straitjacket that condemns the law to stasis. Trial courts may reconsider settled rulings of higher courts in two situations: (1) where a new legal issue is raised; and (2) where there is a change in the circumstances or evidence that ‘fundamentally shifts the parameters of the debate’ (Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at para 42)”: Carter v Canada (Attorney General), 2015 SCC 5 at para 44.

[27]           In Carter, the Supreme Court upheld a trial judge’s decision to revisit Rodriguez v British Columbia (Attorney General), 1993 CanLII 75 (SCC), [1993] 3 SCR 519, 107 DLR (4th) 342 with respect to the blanket prohibition on physician assisted dying. The Supreme Court gave several reasons for revisiting the earlier precedent, which had been decided 22 years prior. The Court noted, at paras 46 and 47:

[28]           Similar considerations come into play here. There is no doubt that there have been significant developments in the technology of personal electronic devices and the way they are used by Canadians since Simmons was decided in 1988. In 1997, almost a decade after Simmons was released, only 22% of Canadian households had a cell phone for personal use; by 2004 that number had increased to 59%[1]. This was prior to the release of the iPhone in 2007, and the advent of smartphones. In January 2019, there were approximately 28 million mobile internet users in Canada.[2] In January 2020, 96% of Canada’s population had a mobile connection and 94% used the internet. Of those who use the internet, 89% own a smartphone, 85% own a laptop or desktop computer, and 55% own a tablet device. [3]

[29]           The law with respect to searches of personal electronic devices in the domestic setting has, likewise, changed significantly in the same period. A series of decisions from the Supreme Court of Canada over the past decade has recognized the evolving law governing search and seizure of such devices.

[30]           In R v Morelli, 2010 SCC 8, a computer technician was installing a high-speed internet connection ordered by the accused when he noticed links to adult and child pornographic sites in the task bar’s favourites list. A search warrant was obtained, which was challenged by the accused at his trial. The majority found that the search and seizure of the appellant’s computer infringed his constitutional rights under s 8 of the Charter and excluded the evidence pursuant to s 24(2) of the Charter under the test in R v Grant, 2009 SCC 32. The Court made the following comments about the significance of the breach at paras 105 and 106:

[31]           In R v Vu, 2013 SCC 60, the appellant was charged with various drug offences and theft of electricity. The police had obtained a warrant authorizing the search of a residence for evidence of theft of electricity, however the warrant did not specifically refer to computers or authorize the search of computers. The Supreme Court of Canada found that there was a breach of the appellant’s s 8 Charter rights. While an authorization to search a “place” included the authorization to search receptacles found within that place, the general authorization did not apply to personal computers and cell phones. Such searches require specific prior authorization. No distinction was drawn between computers and cell phones because “present day phones have capacities that are … equivalent to those of a computer” (para 38). However, the Court did distinguish computers and cell phones from other receptacles, at paras 39 and 40:

[32]           Similar considerations were at issue in R v Fearon, 2014 SCC 77, which involved the search of a cell phone incident to arrest. In discussing the nature of the search of a cell phone, the majority of the Supreme Court of Canada said (at para 51):

[33]           In the result in Fearon, the Court concluded that, given the nature of the privacy interest in the contents of a cell phone, police officers will not be justified in searching a cell phone incidental to every arrest. However, such searches may comply with s 8 where certain conditions are met: para 83.

[34]           In comments that are instructive to the case before us, the Court in Fearon recognized that not all cell phone searches will involve the same level of intrusion on privacy: paras 54-58. Whereas seizures of bodily samples are “invariably and inherently very great invasions of privacy” and “a significant affront to human dignity”, the same cannot be said of every search of a cell phone: para 55. In the case of Fearon itself, a search limited to an unsent text message to a co-offender and a photo of a handgun would constitute only a minimal invasion of privacy. The real issue “is the potentially broad invasion of privacy that may, but not inevitably will, result from law enforcement searches of cell phones”: para 54. The risk of such a serious invasion of privacy led the majority to conclude that the approach for searches incident to arrest must be altered to account for the risk (at para 58):

[35]           The trial judge below distinguished Morelli, Vu, and Fearon because “none of these decisions involve[d] border issues” and were “not authority for the proposition that advances in technology have diminished the unique legal context of the border”: para 32. He held that the decisions “do not support the proposition that because electronic devices contain large amounts of personal information, they are beyond the reach of the law. Rather, they stand for the proposition that individualized search authority may be required”: para 33. Further, the trial judge found it significant that the Supreme Court of Canada refused to grant leave to appeal from the decision in R v Sinclair, 2017 ONCA 287, in which the Ontario Court of Appeal upheld a trial judge’s application of Simmons to the search of a traveller’s luggage. The trial judge concluded there was “no authority for the proposition … that the Supreme Court of Canada is prepared to resile from the principles outlined in Simmons based on advances in technology”: paras 45-46.

[36]           The trial judge’s analysis misses the point. The court is asked to revisit the approach in Simmons not because the Supreme Court of Canada has changed the law, but on the basis that it is appropriate to consider whether the law should be changed. Moreover, refusal of leave is not to be taken to indicate any view by the Supreme Court on the merits of a decision: Des Champs v Conseil des écoles séparées catholiques de langue française de Prescott-Russell, 1999 CanLII 660 (SCC), [1999] 3 SCR 281 at para 31; R v Bachman (1987), 1987 ABCA 105 (CanLII), 78 AR 282 at para 10, 52 Alta LR (2d) 411 (Alta CA); R v Meston (1975), 1975 CanLII 1449 (ON CA), 43 CRNS 323 at para 22, 28 CCC (2d) 497 (Ont CA), citing Gilbert-Ash (Northern) Ltd. v Modern Engineering (Bristol) Ltd., [1973] 3 WLR 421, [1973] 3 AII ER 195 at 442.

[37]           Personal computers and cell phone searches were not mentioned or distinguished from other goods when Simmons was decided in 1988. That is hardly surprising given the nature of the technology that existed at that time. Individuals were not travelling and crossing borders with personal computers or cell phones that contained massive amounts of highly personal information. The technological advancements in computing technology over the past 32 years have fundamentally changed how individuals use personal electronic devices. There have been significant developments in the jurisprudence governing an individual’s reasonable expectations of privacy in their personal electronic devices and searches of such devices in the domestic context.

[38]           We are satisfied that these changes satisfy the threshold test for revisiting the earlier law, and that the trial judge erred in failing to revisit Simmons and consider whether searches of personal electronic devices at the border should continue to be treated as falling into the first Simmons category of a routine search, or whether other approaches should be considered, such as a categorical prohibition, the introduction of a reasonable suspicion or reasonable and probable grounds requirement, a limitation of searches to exigent circumstances, or the adoption of an altogether different or new approach as was done in Fearon.

[39]           One of the grounds of appeal advanced by the appellants is that the trial judge failed to make sufficient findings of fact on a number of issues to permit meaningful appellate review.

[40]            In the course of oral argument, counsel acknowledged that while there was a lack of factual findings by the trial judge on some relevant matters, there is a comprehensive record that was essentially unchallenged and not subject to issues of credibility. The record comprises: an Agreed Statement of Facts; the testimony of BSOs Arul, Atherton, Aboagye and Rai; the affidavit evidence and testimony of Denis Vinette (Director General, International Region, Operations Branch of CBSA, who was qualified as an expert in the operations, policies, and procedures relating to the CBSA’s administration and enforcement of legislation governing the movement, management, and processing of people and goods crossing the Canadian border); the report and testimony of Dr. Peter Collins (qualified as an expert in forensic psychiatry, particularly with respect to sexual deviance, pedophilia, and the use, consumption, collection, and effects of sexually explicit material, including child pornography); the report and testimony of Neil Malamuth (qualified as an expert in psychology and the effects of exposure to sexually explicit material, including child pornography and obscenity, and the effects of sexually violent material in particular); and the report and testimony of Darren Murray (Manager of the Informatics Mobile Support Unit with the RCMP, who was qualified as an expert in the forensic examination of various types of digital devices).

[41]           The appellants called no evidence.

[42]           Having regard to the nature of the record, counsel agreed that the panel could assess the record and make the necessary factual findings to address the constitutionality of s 99(1)(a) of the Customs Act and the appellants’ Charter applications. The briefs filed in the court below were provided to the panel. As a result, rather than refer the matter back to be heard by a new judge, we have reviewed the record at trial, some of the important elements of which are set out below.

[43]           The CBSA is “responsible for providing integrated border services that support national security and public safety priorities and facilitate the free flow of persons and goods, including animals and plants that meet all requirements under the program legislation”: Canada Border Services Agency Act, SC 2005, c 38, s 5(1).

[44]           The CBSA has approximately 14,000 employees, including over 6,500 uniformed officers who provide services at 1200 points across Canada and abroad. During the period April 1, 2015 to March 31, 2016, the CBSA processed over 92 million travellers who arrived in Canada, over 16 million releases of commercial goods, and over 39 million shipments sent by courier. During that period, the CBSA made 11,163 drug seizures (valued at $329 million), 1,966 currency seizures (valued at $33.2 million), 829 firearms seizures, 8,922 prohibited weapon seizures, 1,610 tobacco seizures, 142 child pornography seizures and 661 seizures of other prohibited goods.

[45]           CBSA relies upon the regulatory inspection provisions in the Customs Act. Goods brought into Canada are classified under the Customs Tariff. Prohibited items include child pornography, hate propaganda, obscene material, treasonous or seditious material, and reprints of Canadian copyrighted works. The vast majority of imported goods which are inspected at the border, including personal electronic devices, are examined pursuant to s 99(1)(a).

[46]           Travellers who arrive at a port of entry to Canada are initially subject to primary processing at a primary inspection line. They are typically asked a series of questions by a BSO to determine their immigration status, the nature of any goods they are importing, and their duty-free allowance and personal exemption entitlements. The BSO may release the person directly, refer them for additional processing (e.g. payment of duties and taxes), or refer them for secondary examination. Referrals to secondary examination can be done for mandatory reasons (based upon a specific lookout or target or a computer generated “hit”), on a random basis, or as a selective referral. Selective referrals are made when the BSO has “reasonable grounds to suspect that additional examination or investigation is necessary to make a decision on release”: CBSA Enforcement Manual, Part 3, Chapter 3 – Reporting, Questioning and Referral and the Glossary, Part 11.

[47]           The policies and procedures developed by the CBSA are set out in the CBSA Enforcement Manual and the People Processing Manual. CBSA policies require officers to be “able to articulate the reason for making a selective referral or proceeding with an examination” (Vinette Affidavit at para 47). CBSA’s People Processing Manual provides that selective referral is to be based on “indicators”, defined as “a single piece of information, trend, abnormality, or inconsistency that when added to other information or data raises a concern to a targeting officer about the threat presented by a traveller or shipment” (CBSA Enforcement Manual, Part 11, chapter 1). The Glossary to the CBSA refers to “reasonable grounds to suspect that additional examination or investigation is necessary”, and the CBSA Enforcement Manual, Part 3, Chapter 3 instructs selective referral to be “made when reasonable suspicions exist about the truth of a person’s declaration”. The purpose of these policies is “to ensure that officers are making decisions about selective referrals and examinations in a reasonable manner…that the powers exercised by CBSA officers are applied in a fair and defensible manner…that officers not base their actions upon personal bias, including impermissible human rights considerations…and prevent claims that CBSA officers exercised their authority in an unreasonable manner” (Vinette Affidavit at para 48).

[48]           Operational Bulletins, first published in 2012 and updated in 2015, contain specific guidelines regarding the authority of CBSA officers to examine portable computers and mobile communications devices.^[4] They include the following.

[49]           In his evidence, Mr. Vinette expressed concern about the ability of CBSA officers to fulfill their legislative mandate if a “legal threshold” of individualized reasonable suspicion were imposed. He described CBSA’s policy of requiring “articulable reasons” for examining electronic goods as falling “well below” the legal threshold of individual reasonable suspicion. Mr. Vinette expressed concern that “a legal threshold of individualized reasonable suspicion for examination of digital devices would significantly undermine the CBSA’s capacity to perform its statutory mandate” and would create distinctions “whereby goods brought into Canada within electronic devices are subject to a higher inspection threshold than goods stored in a more traditional manner”. As technology advances, this distinction would “expand to exempt more and more goods from the ambit of the CBSA’s long-standing powers on no-threshold inspection … impeding the CBSA in its legislated mandate, including its role in enabling Canada to meet its international obligations.” Mr. Vinette also stated that examination of documents such as receipts, invoices and airline tickets “are essential to border controls”. As more of such documents are stored electronically, it would “undermine the CBSA’s basic functions if an officer could examine a printed receipt as a matter of routine but one stored as a PDF file on an electronic device only after meeting a legal threshold”. CBSA anticipates that a legal threshold for inspection of digital devices “would be exploited by smugglers” (Vinette Affidavit at paras 89-93, 99).

[50]           Evidence was also led at trial of the pernicious nature of child pornography and the efforts made by CBSA to curb it. There was significant expert evidence at trial regarding pedophilia and the use, consumption, collection and effects of sexually explicit material, including child pornography, and the escalation of the problem since the advent of the internet. As many as a third of child pornography offenders have committed sexual offences against children; those who travel abroad to abuse children may be carrying documented records of their activities and seek to transport them across international borders. Between 2011 and 2015, CBSA made an average of 123 seizures of child pornography at the Canadian border annually, of which the majority (between 73% and 80%) were on electronic devices.

[51]           At the primary inspection line, Mr. Canfield was referred for secondary inspection by BSO Arul on the basis that he was travelling alone, had travelled regularly to Cuba by himself, had an overly friendly demeanor, and referred to “women and Cuba and the beach”, which BSO Arul considered to be an indicator for sex tourism for women and children.

[52]           Mr. Canfield was examined in the secondary examination area by BSO Rai, who asked him questions about his luggage and travel while searching his luggage. At that point, BSO Rai knew there was a concern with Mr. Canfield at the primary inspection line, but did not know the nature of the concern. He noted that Mr. Canfield was breathing heavily, sweating profusely, had a cotton dry mouth and his hands were shivering and shaking. Based on his discovery of condoms, lubricants and a penis ring in Mr. Canfield’s luggage, his observations of Mr. Canfield’s demeanour, and his belief that Cuba was known for sex tourism, BSO Rai formed the belief that Mr. Canfield had child pornography on his cell phone. BSO Rai asked Mr. Canfield if there was a possibility he had child pornography on his cell phone. Mr. Canfield first said, “I’m not sure”, but later said, “yes”.

[53]           BSO Rai testified as follows:

[54]           BSO Rai seized the cell phone and searched for additional images in the gallery application. BSO Rai considered that Mr. Canfield was under “examination” and not arrest at the time, although he later testified he had decided that he would be arresting Mr. Canfield after seeing the first image. BSO Rai arrested Mr. Canfield after consulting with his Superintendent. He advised Mr. Canfield of his rights and provided the caution. BSO Rai’s interaction with Mr. Canfield took approximately 23 minutes. BSO Rai did not take notes while he was interacting with Mr. Canfield. He examined the cell phone a second time when writing his report.

[55]           The matter was referred to the Northern Alberta Internet Child Exploitation Unit for investigation. A search warrant for the cell phone was obtained based upon the observations of the BSOs, which identified 130 photographs and 17 videos that were admitted to constitute child pornography.

[56]           On March 22, 2014, the date that Mr. Townsend arrived at the Edmonton International Airport from Seattle, CBSA was engaged in Project Safe Haven, a two-day special project where four personnel were tasked with examining laptops of arriving travellers directed at detecting and preventing the importation of child pornography into Canada. BSO Arul, who questioned Mr. Townsend at the primary inspection line, testified on his reasons for referring Mr. Townsend for secondary inspection:

[57]           At secondary inspection, BSO Atherton examined Mr. Townsend’s luggage and noted that he appeared agitated and was in possession of 12 electronic devices. BSO Atherton also found Mr. Townsend’s position during the examination suspicious, which suggested that he was trying to hide something. He also testified that he believed the United States to be “renowned as a source country for child pornography”. BSO Atherton searched one of Mr. Townsend’s cell phones and discovered legal pornographic images. Another BSO, BSO Aboagye, began to search Mr. Townsend’s laptop computer, which was password protected. Mr. Townsend was reluctant to provide the password, but did so when BSO Aboagye insisted. At some point, Mr. Townsend asked if he needed a lawyer. Approximately 10 minutes after the search of the laptop began, BSO Aboagye located an item of child pornography. She ended the examination and attempted to arrest Mr. Townsend under the Customs Act; he fainted and was taken to hospital.

[58]           The matter was referred to the Northern Alberta Internet Child Exploitation Unit, and a search warrant was obtained for a forensic examination of Mr. Townsend’s various devices. A total of 4422 pictures and 53 videos of child pornography were found on the devices, all of which appeared to have been downloaded from the internet.

[59]           Section 8 of the Charter provides that everyone has the right to be free from unreasonable search and seizure. “To claim s. 8 protection, a claimant must first establish a reasonable expectation of privacy in the subject matter of the search, i.e., that the person subjectively expected it would be private and that this expectation was objectively reasonable”: R v Marakah, 2017 SCC 59 at para 10, citing R v Edwards, 1996 CanLII 255 (SCC), [1996] 1 SCR 128 at para 45, 132 DLR (4th) 31; Hunter et al v Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 SCR 145 at pp 159-60, 11 DLR (4th) 641. Whether the claimant had a reasonable expectation of privacy must be assessed in “the totality of the circumstances”: Edwards at paras 31 and 45; see also R v Spencer, 2014 SCC 43 at paras 16-18; R v Cole, 2012 SCC 53 at para 39; R v Patrick, 2009 SCC 17 at para 26; R v Tessling, 2004 SCC 67 at para 19; R v Marakah at para 10.

[60]           Four lines of inquiry guide the determination of whether a claimant has a reasonable expectation of privacy “in the totality of the circumstances” (Marakah at para 11):

[61]           The appellants had a direct interest in the subject matter of the search, which was the “data, or informational content” of their personal electronic devices. The “concern is thus with informational privacy: ‘[T]he claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others’”: Tessling at para 23, quoting A. F. Westin, Privacy and Freedom (1970), at p 7; Cole at paras 41-42.

[62]           Neither of the appellants testified regarding their subjective expectation of privacy in the contents of their electronic devices. Courts have “presumed unless the contrary is shown in a particular case that information about what happens inside the home is regarded by the occupants as private”: Tessling at para 38. Similar presumptions have been made that an individual’s “direct interest and subjective expectation of privacy in the informational content of his computer can be readily inferred from his use of the laptop to browse the Internet and to store personal information on the hard drive”: Cole at para 43. The same inference can be drawn with respect to an individual’s cell phone, which will often contain comparable levels of personal information: Fearon at para 51. It also appears that Mr. Townsend had an expectation of privacy with respect to his computer to the extent that he was reluctant to provide the password to his “work” computer and asked if he needed a lawyer before doing so. We accept that both appellants had a subjective expectation of privacy in their personal electronic devices.

[63]           A number of factors have been considered in assessing whether privacy expectations are objectively reasonable:

[64]           The personal electronic devices were owned by the appellants and were in their possession and control when the searches were conducted. Such devices often contain highly personal information. The inherent privacy of an individual’s “biographical core of personal information” is well recognized. As noted in R v Plant, 1993 CanLII 70 (SCC), [1993] 3 SCR 281 at 293, 145 AR 104:

[65]           This was also recognized in Cole, at paras 46-48:

[66]           The key question is to what extent an expectation of privacy is reasonable in the context of an international border crossing. In the domestic context it is well-recognized that individuals have a reasonable expectation of privacy in the contents of their personal electronic devices: see Morelli, Vu, Fearon. However, reasonable privacy expectations at an international border differ from reasonable expectations of privacy elsewhere. As was recognized at para 49 of Simmons:

[67]           The high expectation of privacy that individuals have in their personal electronic devices generally must be balanced with the low expectation of privacy that individuals have when crossing international borders. Since border crossings represent unique factual circumstances for the reasonableness of a s 8 search and seizure (Monney at paras 42-43), the reasonable expectations of privacy international travellers hold in their electronic devices must be considered anew and in context.

[68]           The law recognizes that individuals have some objectively reasonable expectations of privacy at the border. Both Simmons and the Customs Act, s 98 recognize that reasonable grounds are necessary before a strip search can be conducted. Moreover, body cavity searches “may raise entirely different constitutional issues for it is obvious that the greater the intrusion, the greater must be the justification and the greater the degree of constitutional protection”: Simmons at para 28.

[69]           The searches at issue in this case were purportedly conducted under the authority of s 99(1)(a) of the Customs Act. That provision permits a customs officer to “examine any goods that have been imported and open or cause to be opened any package or container of imported goods”. The legislation provides no limits on the examination of any imported goods conducted under this section, beyond presumably that the search be conducted for a valid customs purpose. Computers and cell phones, including the electronic documents which they contain, have been treated in the jurisprudence as “goods” that can be searched at the border pursuant to s 99(1)(a) as part of a routine search without raising any Charter implications, on the basis that they fall within the first category of routine search outlined in Simmons: R v Leask, 2008 ONCJ 25 at para 18; R v Bares, 2008 CanLII 9367 (ON SC); R v Mozo, [2010] NJ No 445 at para 34 (NL PC); R v Whittaker, 2010 NBPC 32; R v Moroz, 2012 ONSC 5642 at para 20; R v Saikaley, 2012 ONSC 6794 at para 82; R v Buss, 2014 BCPC 16 at paras 25–32; R v Gibson, 2017 BCPC 237 at para 201; R v Singh, 2019 OCJ 453 at paras 64-65; and Bialski at para 111. It is also worth noting that, unlike the nature of the complaints in Little Sisters Book and Art Emporium v Canada (Minister of Justice), 2000 SCC 69 at para 77, [2000] 2 SCR 1120, the issue here is not merely the implementation of the statutory scheme by customs officials, but the scheme itself, which purports to authorize unlimited searches of "goods" at the border (s 99(1)(a)) and sets out a broad definition of "goods" that arguably captures personal electronic devices and the information stored thereon (s 2(1)).

[70]           The appellants have submitted that the contents of a laptop computer or cell phone do not qualify as “goods”. We are satisfied that the electronic documents, photos or videos on an electronic device fall within the broad definition of “goods’ in s 2 of the Customs Act, which includes “any document in any form”. However, that does not end the inquiry. The question is whether the contents of electronic devices should be treated differently from other receptacles at the border.

[71]           A distinction has been drawn in the domestic context between searches of personal computers and other receptacles “because computers are not like other receptacles that may be found in a place of search. The particular nature of computers calls for a specific assessment of whether the intrusion of a computer search is justified, which in turn requires prior authorization”: Vu at para 39. In Vu, several distinctions between computers and other receptacles were identified:

[72]           The Court in Vu concluded that “(t)hese numerous and striking differences between computers and traditional ‘receptacles’ call for distinctive treatment under s. 8 of the Charter. The animating assumption of the traditional rule — that if the search of a place is justified, so is the search of receptacles found within it — simply cannot apply with respect to computer searches”: para 45.

[73]           The categories of search recognized by Simmons relate primarily to physical or bodily privacy; they do not address informational privacy, which is also an aspect of the right to be protected against unreasonable search and seizure under s 8. The appellants point out that s 99(1)(b) provides greater protection for mail than is provided for electronic documents under s 99(1)(a). Section 99(1)(b) provides that an officer may “examine any mail that has been imported and … open or cause to be opened any such mail that the officer suspects on reasonable grounds contains any goods” that are prohibited, controlled or regulated. No such requirement is contained in s 99(1)(a). In “Privacy of Canadians at Airports and Borders” (Ottawa: Canadian Bar Association, September 2017), the authors put the distinction in privacy between electronic devices and mail this way:

[74]           Reasonable grounds to suspect are also required prior to the carrying out of a strip search under the Customs Act. Section 98 provides that an officer can search any person if the officer “suspects on reasonable grounds that the person has secreted on or about his person” anything that might afford evidence with respect to a contravention, or any prohibited, controlled or regulated goods. In Simmons, the majority noted that such searches of the person are “not routine”, but as they required reasonable grounds and were subject to review at the request of the person being searched, they were not unreasonable under s 8 of the Charter: para 51.

[75]           We agree with the conclusion in Fearon at paras 54 and 55 that, while the search of a computer or cell phone is not akin to the seizure of bodily samples or a strip search, it may nevertheless be a significant intrusion on personal privacy. To be reasonable, such a search must have a threshold requirement. As was noted in Simmons at para 28, “the greater the intrusion, the greater must be the justification and the greater the degree of constitutional protection”. Given that, in 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. The appellants suggest a requirement for individualized suspicion that the search will reveal contraband. Recognizing that complex issues must be weighed in altering the law in this area, 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 other 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.

[76]           We hasten to add that not all searches of personal electronic devices are equal. As was noted in Vu at para 63, it is neither possible nor desirable “to create a regime that applies to all computers or cellular telephones that police come across in their investigations, regardless of context”.

[77]           In Fearon, when considering restrictions that would be appropriate on searches of cell phone incident to arrest, the Supreme Court noted that the common law imposes meaningful requirements on such searches, saying at para 57:

[78]           Nevertheless, because of the potential for a cell phone search to be a much more significant invasion of privacy than the typical search incident to arrest, the court in Fearon concluded that the suspect should be provided “further protection against the risk of wholesale invasion of privacy”: para 58. The court’s focus was not “on steps that effectively gut the usefulness of searches incident to arrest”, but rather “on measures to limit the potential invasion of privacy that may, but does not inevitably result from a cell phone search”: para 74. Some of the measures implemented by Fearon included tailoring the scope of the search to the purpose for which it may lawfully be conducted; restricting searches for the purpose of discovering evidence only when the investigation will be stymied or hampered absent the ability to promptly search the cell phone incident to arrest; and requiring officers to take detailed notes of what has been examined.

[79]           We do not say that the limitations enunciated in Fearon should all be adopted in border searches; the unique context of the border and the purpose of border searches must inform the approach taken. However, there are similarities between the two cases. Although an unlimited and suspicion-less search of the contents of a personal electronic device would breach the Charter, we recognize that some of the information commonly stored on cell phones and other devices must be made available to border agents as part of the routine screening of passengers. For example, and without setting out an exhaustive list, we note that receipts and other information relating to the value of imported goods, as well as travel related documents, are an essential part of 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.

[80]           Having concluded that s 99(1)(a), as drafted and insofar as it purports to authorize unrestricted searches of personal electronic devices, violates the s 8 protection against unreasonable searches, we turn to consider whether the violation is nevertheless justified under s 1 of the Charter.

[81]           Section 1 of the Charter “guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.

[82]           We have concluded that s 99(1)(a) of the Customs Act offends the right to be secure from unreasonable search and seizure pursuant to s 8 of the Charter to the extent that it authorizes suspicion-less and unlimited searches of personal electronic devices. As these searches are prescribed by law, the burden shifts to the Crown to demonstrate on a balance of probabilities that such searches are reasonable and justified in a free and democratic society: R v Oakes, 1986 CanLII 46 (SCC), [1986] 1 SCR 103 at pp 136-37, 26 DLR (4th) 200. The justification criteria were recently reiterated in Frank v Canada (Attorney General), 2019 SCC 1 at para 38:

[83]           “A law that limits a constitutional right must do so in pursuit of a sufficiently important objective that is consistent with the values of a free and democratic society. This examination is a threshold requirement that is undertaken without considering the scope of the right infringement, the means employed, or the relationship between the positive and negative effects of the law”: R v KRJ, 2016 SCC 31 at para 61.

[84]           The trial judge concluded that, “(a)s noted in Simmons, maintaining a secure border is vital to maintaining national sovereignty”: para 75. The majority in Simmons accepted the rationale from American authorities “that border searches lacking prior authorization and based on a standard lower than probable cause are justified by the national interest of sovereign states in preventing the entry of undesirable persons and prohibited goods, and in protecting tariff revenue”: para 49. In our view, this continues to be the objective of the provisions of the Customs Act that regulate the entry of goods and people into Canada.

[85]           We find that the objective of s 99(1)(a) is to maintain a secure border and protect the national interest by preventing the entry of undesirable persons and prohibited goods, and in protecting tariff revenue. We are satisfied that this qualifies as a pressing and substantial objective.

[86]           The first step of the proportionality inquiry is “whether the measure that has been adopted is rationally connected to the objective it was designed to achieve. The rational connection step requires that the measure not be ‘arbitrary, unfair, or based on irrational considerations’”: Frank at para 59, citing Oakes at p 139. Essentially, the government must show that there is a causal connection between the limit and the intended purpose: RJR-MacDonald Inc. v Canada (Attorney General), 1995 CanLII 64 (SCC), [1995] 3 SCR 199 at para 153, 127 DLR (4th) 1. In cases where a causal connection is not scientifically measurable, one can be made out on the basis of reason or logic, as opposed to concrete proof: RJR-MacDonald at para 154; Toronto Star Newspapers Ltd. v Canada, 2010 SCC 21 (CanLII), [2010] 1 SCR 721 at para 25, 320 DLR (4th) 64; Frank at para 59.

[87]           The trial judge concluded that “there is clearly a rational, causal connection between border security and the purpose s 99(1)(a) was intended to achieve”: para 80.

[88]           The appellants submit that the overwhelming majority of child pornography is shared over the internet. In such circumstances, permitting unrestricted searches of personal electronic devices for child pornography, obscene material and hate propaganda is not rationally connected to the objective of preventing such materials from entering Canada.

[89]           The Crown submits that the ability to examine the contents of electronic devices without grounds to suspect an offence permits the effective policing of Canada’s borders because it increases the likelihood that contraventions will be discovered and deters non-compliance. Many documents that are relevant to the customs inspection process, such as travel documents, electronic receipts, pictures, and electronic communications confirming that imported goods were not reported, are now in electronic form. Similarly, seizures related to the evasion of duties and taxes, and prohibited items such as child pornography are often in electronic format. As was noted earlier, from 2011 to 2015 between 73 and 80% of all seizures of child pornography at the border were on electronic devices.

[90]           We are satisfied that s 99(1)(a) is rationally connected to the objective of border security. Whether the provision exceeds what is necessary to achieve that objective is a matter to be assessed at the next stage of the inquiry.

[91]           The second step of the proportionality inquiry “requires the government to show that the measure at issue impairs the right as little as reasonably possible in furthering the legislative objective. In other words, the measure must be ‘carefully tailored’ to ensure that rights are impaired no more than is reasonably necessary. However, some deference must be accorded to the legislature by giving it a certain latitude: ‘If the law falls within a range of reasonable alternatives, the courts will not find it overbroad merely because they can conceive of an alternative which might better tailor objective to infringement’”: Frank at para 66 [citations omitted].

[92]           The trial judge found that “it is difficult to identify a less harmful means of achieving the government subjective [sic] of maintaining border security in the context of efficiently processing millions of entrants into Canada every year”: para 82.

[93]           Between April 1, 2015 and March 31, 2016, CBSA processed more than 92 million individual travellers, 33 million conveyances, 16 million releases of commercial goods and 39 million courier shipments. Mr. Vinette was unable to estimate how many cell phones or laptop computers were searched at the border on an annual basis. The evidence was that it was “quite common” and “standard procedure” to search electronic devices, and that such searches may take up to 45 minutes.

[94]           The appellants submit that s 99(1)(a) authorizes indiscriminate searches of any traveller’s electronic devices, without the need for any grounds to conduct a search and without limits on the scope of the search. BSOs have unlimited legislative discretion on when, where and how to conduct a search of a device, and how thoroughly the device is searched.

[95]           The Crown notes that searches of electronic devices must be conducted in accordance with the purpose of the Customs Act. They are performed as part of secondary screening when concerns arise about whether a traveller is in breach, or as part of random selection. CBSA policies prohibit the examination of data stored on remote servers and information gathered as a result of such searches is subject to the confidentiality provisions in s 107 of the Customs Act. The Crown submits that any additional limits would reduce the scope of routine customs examinations and the effectiveness of border control. The Crown opposes the appellants’ suggestion that a reasonable suspicion standard should be applied to ensure that the law is minimally impactful, pointing out that reasonable suspicion is different from a generalized suspicion. It is a rigorous standard that must “be based on objectively discernable facts, which can then be subjected to independent judicial scrutiny…(it) is an expectation that the targeted individual is possibly engaged in some criminal activity. A ‘reasonable’ suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds”: R v Chehil, 2013 SCC 49 at para 26 (citing R v Kang-Brown, 2008 SCC 18 (CanLII), [2008] 1 SCR 456 at para 75, 293 DLR (4th) 99). The Crown argues that such a standard would negatively impact CBSA officers’ ability to conduct a search if they had only generalized information about a particular flight, or observed anomalous behaviour that would not meet the criteria of reasonable suspicion.

[96]           Section 99(1)(a) imposes no legislative limits at all on searches of “goods” at the border. CBSA has developed policies that provide guidance on when and how electronic devices may be searched at the border. The 2015 Guideline provides in part:

[97]           The above limitations are not contained in the legislation; they are CBSA policies only. In his evidence, Mr. Vinette characterized these policies as not intending to impose a legal threshold of individualized suspicion because that “would significantly undermine the CBSA’s capacity to perform its statutory mandate” (Vinette Affidavit at para 89). He stated that “CBSA anticipates that a legal threshold for inspection of digital devices would be exploited by smugglers” (para 99). It is not apparent why appropriately drafted legislated limits on searches of personal electronic devices would significantly undermine CBSA’s ability to perform its mandate beyond what would be the case if CBSA officers were complying with the above policies. The existence of these CBSA policies suggests that some form of limitation on an unrestricted search ability of personal electronic devices is both possible and would not frustrate the objective of ensuring effective border security.

[98]           It is relevant that other provisions in the Customs Act require a prescribed threshold to be met before goods entering Canada can be searched:

[99]           The rationale for the distinction between the unrestricted search of goods permitted under paragraph 99(1)(a), and the threshold requirement for “suspicion on reasonable grounds” for the search of goods under paragraphs 99(1)(b), (c.1), (d), (d.1), (e) and (f) is not apparent. As was noted in the discussion of the constitutionality of s 99(1)(a), the privacy interest in the contents of laptop computers or cell phones greatly exceeds that in a single piece of mail, yet mail can only be searched where an officer suspects on reasonable grounds that the Customs Act has been violated.  

[100]      As well, s 139(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 provides that persons seeking to enter Canada, their luggage, personal effects and the means of transportation that conveyed them to Canada may be searched if the officer believes on reasonable grounds that the person has not revealed their identity, has hidden on or about their person documents that are relevant to their admissibility, or has committed or possesses documents that may be used in the commission of people smuggling, human trafficking, or document fraud (emphasis added). The CBSA’s 2015 Operational Bulletin: Examination of Digital Devices and Media at the Port of Entry – Interim Guidelines describe this provision as allowing “for the search of digital devices and media at the ports of entry where there are reasonable grounds” to believe that the criteria in the statute have been met, provided that the purpose of the search must be confined to identifying the person, finding documents relevant to admissibility or that may be used in the specified offences, or finding evidence of the specified offences.

[101]      It is difficult to reconcile the requirement for “reasonable grounds” to search the computer or cell phone of an individual who is seeking to enter Canada pursuant to the Immigration and Refugee Protection Act with the lack of any requirement, not even at a lower threshold such as “reasonable suspicion”, to search the computer or cell phone of an individual entering Canada (who, like the appellants, may be a Canadian citizen) pursuant to the Customs Act.

[102]      Having regard to the other provisions of the Customs Act and the Immigration and Refugee Protection Act, which impose some limits on the searches of goods, and the policies adopted by CBSA with respect to searches of personal electronic devices, we find that the unrestricted ability to search such devices pursuant to s 99(1)(a) does not satisfy the minimal impairment aspect of the proportionality inquiry.

[103]       The final step of the proportionality inquiry involves asking “whether there is proportionality between the overall effects of the Charter-infringing measure and the legislative objective. Whereas the preceding steps of the Oakes test are focused on the measure’s purpose, at this stage the assessment is rooted in a consideration of its effects. This allows a court to determine on a normative basis whether the infringement of the right in question can be justified in a free and democratic society”: Frank at para 76 [citations omitted]. In other words, are “the benefits of the impugned law …worth the cost of the rights limitation”: Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 SCR 567 at para 77.

[104]      An average of 94 million travellers passed through the Canadian border in 2014 and 2015; during the same period there were 229 seizures of digital child pornography. CBSA was unable to indicate what percentage of travellers had their personal electronic devices searched, but the BSOs who testified indicated that doing so was “quite common” and “standard procedure”. The BSOs indicated that in the course of their searches of electronic devices they regularly viewed intimate photos and videos, internet browser histories, work-related documents, personal emails and financial information. It is reasonable to conclude that thousands of individuals had their personal electronic devices searched pursuant to s 99(1)(a).

[105]      Unfettered and unrestricted access by BSOs to search personal electronic devices has serious implications for the privacy interests of these thousands of individuals who have had their devices searched at the border, and indeed for any individual seeking to cross the Canadian border with a personal electronic device in their possession. As has been noted in cases like Vu and Fearon, giving access to such devices is akin to giving access to one’s biographical core and to a myriad of potentially sensitive documents and communications. The protection of these important privacy interests must be balanced against the need for secure borders and the need to combat child pornography.

[106]      Turning to the salutary effects, technological advancements continue to create new and unforeseen ways to undermine border security. For searches of electronic devices, BSOs may not know where evidence will be, in what form, or how it can be accessed. The lag between these advancements and CBSA’s ability to respond presents real challenges for border safety, security, and crime suppression. Courts must be careful not to short-circuit the state’s capacity to secure the border even before these criminal practices are identified. Broad search powers can provide flexibility to adapt to unforeseen and increasingly complex criminal strategies.  

[107]      Child pornography, in particular, is a serious issue of great public importance, as was confirmed by the evidence of Dr. Collins. He testified that some paedophilic sex-travellers, who travel to countries where it is easier to meet children and abuse them sexually, save the images of their sexual encounters with children as “trophies” and use them for their own masturbatory purpose or post and/or trade the images on-line with other like-minded individuals. Such images may well be on the personal electronic devices of paedophilic sex travellers when they are returning to Canada. Their online nature can amplify the impact and permanence of harm done to victims. Mr. Vinette’s evidence noted the examination of a tablet in the possession of a Wisconsin resident in 2015 containing images of child sexual abuse. As a result of cooperation between Canadian and US officials, the search led to the identification of the 6-year-old female victim.

[108]      But the deleterious effects to personal and digital privacy enabled by s 99(1)(a) are substantial, and provide compelling reasons to curtail unfettered search powers of electronic devices at the border. Under a broad and plenary power to search personal electronic devices, advances in technology may make mass surveillance at the border entirely possible in the near future: see Gerald Chan and Nader R Hasan, Digital Privacy: Criminal, Civil and Regulatory Litigation (Toronto: LexisNexis Canada, 2018) at 42. This prospect is disconcerting in light of the intimate biographical information stored on these devices and the personal data they generate. Devices now contain vast amounts of data touching on financial and medical details, the personal likes and propensities of users, and their geographic movements over time. They may create and retain this data automatically, unbeknownst to the user, and they can also provide access to data stored on remote networks or other devices which the police may have no lawful authority to search.

[109]      There is no doubt that child pornography is a pernicious problem, and that the search of personal electronic devices at the border can go some way toward addressing that problem. We also have no difficulty in concluding that the national security interests of Canada in policing its border and enforcing its customs and other laws at the border are important objectives. However, it is not at all clear that these objectives cannot be met if additional safeguards are put in place to protect individuals from unnecessarily intrusive searches of their personal electronic devices. The policies put in place by the CBSA go some way to recognizing the need for such safeguards, however policies are not “prescribed by law” as required by s 1. Ultimately, we have determined that, as currently drafted, s 99(1)(a) is not saved by s 1.

[110]      Section 52(1) of the Constitution Act, 1982 provides:

[111]      We are satisfied that s 99(1)(a) of the Customs Act violates s 8 of the Charter to the extent that it authorizes unlimited searches of the contents of personal electronic devices (such as cell phones or lap top computers). The provision is not saved by s 1 as a reasonable and demonstrably justified limit. Accordingly, we declare that the definition of “goods” in s 2 of Customs Act is of no force or effect insofar as the definition includes the contents of personal electronic devices for the purposes of s 99(1)(a).

[112]      We are mindful that protecting the privacy interest in an individual’s personal electronic devices while recognizing the need for effective border security will involve a complex and delicate balancing process. It will be up to Parliament, should it choose to do so, to devise a new approach that imposes reasonable limits on the ability to conduct such searches at the border. This raises the question of whether the declaration of invalidity should be suspended and if so for how long: Bedford at paras 166-167.

[113]      Suspension of the declaration could mean that some travellers may continue to have their s 8 privacy rights violated during the intervening period. Immediate invalidity would preclude personal electronic devices from being searched at the border, which may pose a danger to the public: Schachter v Canada, 1992 CanLII 74 (SCC), [1992] 2 SCR 679, 93 DLR (4th) 1.

[114]      We recognize that there are a number of matters that need to be considered in devising an appropriate law that balances the competing interests at play in this context. For example, what items can be examined without constituting a search; what should be the trigger or threshold for any search to be conducted; how should requests for passwords or requests to show photographs to a BSO be handled; what is the scope of the search; should there be a requirement to document what is searched and how it was searched. As was noted previously, the Supreme Court in Fearon preferred an approach that would see a restriction on the scope of searches that could be conducted incident to arrest; the CBSA guidelines already address some of the relevant issues.

[115]      Given the serious problems posed by child pornography and other border protection goals, we have concluded it is appropriate to give Parliament an opportunity to craft a solution that addresses and balances the various competing interests. Accordingly, the declaration of invalidity will be suspended for one year.

[116]      As we have concluded that s 99(1)(a) of the Customs Act is unconstitutional to the extent that it applies to searches of information contained on personal electronic devices, the searches of the appellants’ cell phones and personal computers were unreasonable searches, not authorized by a valid law, that violated their rights under s 8 of the Charter.

[117]      Section 10 of the Charter provides that everyone has the right on arrest or detention “to be informed promptly of the reasons therefor” (s 10(a)) and “to retain and instruct counsel without delay and to be informed of that right” (s 10(b)).

[118]      The trial judge concluded that the appellants “were not detained during secondary screening, thus ss 10(a) and 10(b) Charter rights were not engaged”: para 92. He relied on Dehghani v Canada (Minister of Employment and Immigration), 1993 CanLII 128 (SCC), [1993] 1 SCR 1053, 101 DLR (4th) 654, which held that routine questioning of a person during secondary screening at the border does not amount to detention within the meaning of s 10(b) of the Charter.

[119]      The appellants suggest that the analysis in Grant, that detention occurs when an individual has been deprived of the right “to choose to walk away or decline to answer questions” (paras 41–44), supersedes earlier rulings of the Supreme Court of Canada on detention, and that the Grant analysis should be applied at the border. We reject this approach, as it would mean that every traveller who elected to cross the border would be “detained” and would have a right to counsel, which is neither reasonable nor realistic. It is inherent in electing to seek to enter Canada at a border crossing that individuals voluntarily put themselves in the position where they are required to answer questions asked by border agents: see ss 11, 153 and 160 of the Customs Act. As a result, and in recognition of border security concerns, the courts have adopted different criteria for what constitutes detention at the border.

[120]      Simmons recognizes that some interactions between a traveller and a customs officer at the border constitute detention, while others do not. There is “little doubt that routine questioning by customs officials at the border or routine luggage searches conducted on a random basis do not constitute detention for the purposes of s 10. There is no doubt, however, that when a person is taken out of the normal course and forced to submit to a strip search that person is detained within the meaning of s 10”: para 36.

[121]      In R v Jacoy, 1988 CanLII 13 (SCC), [1988] 2 SCR 548, 89 NR 61, released the same day as Simmons, the accused was suspected of intending to import narcotics into Canada. He was under surveillance by the RCMP in Washington state, who contacted CBSA and suggested they perform a secondary inspection. When the appellant was frisked as part of the secondary inspection, a bag containing cocaine was located. He was handcuffed and advised of his right to retain and instruct counsel without delay. He immediately asked to telephone his lawyer but was not allowed to do so until he arrived at the police station two hours later. In the meantime, he was further searched and additional cocaine was found on his person. He was not advised about ss 143 and 144 of the Customs Act (since replaced), which at the time provided the accused with the right to appear before a justice of the peace, police magistrate or the chief customs officer to justify the search. At trial, the narcotics were excluded from evidence on the grounds that the appellant’s s 10(b) rights were infringed. In the result, the acquittal was set aside, but on the issue of detention the majority of the Supreme Court of Canada had this to say at para 14:

[122]      In both Simmons and Jacoy, detention was found to have occurred once a decision was made to search (and potentially strip search) an individual pursuant to ss 143 and 144 of the Customs Act.

[123]      On the other hand, no detention occurs where a search is characterized as part of “routine questioning”. In another case, a search of someone’s pockets was found to be “no more invasive than a search of baggage, or a purse, or a pat down or frisk of outer clothing…the border search in this case had only proceeded to a secondary inspection, which remains a routine part of the general screening process”: R v Hudson (2005), 2005 CanLII 47233 (ON CA), 77 OR (3d) 561 at para 38, 203 CCC (3d) 305 (Ont CA).

[124]      The search of a purse was also viewed as part of routine questioning in R v Nagle, 2012 BCCA 373. The court went on to note at para 81, however:

[125]      In applying this analysis to the search of personal electronic devices, we do not suggest that every search of an electronic device would go beyond “routine questioning” and amount to a detention. Such a conclusion would ignore the border context. As was noted in R v Jones (2006), 2006 CanLII 28086 (ON CA), 81 OR (3d) 481 at para 32, 211 CCC (3d) 4 (ONCA), “[p]ersons seeking entry into Canada are subject to state action that can range from routine questioning to highly intrusive searches. The extent to which state action at the border will be said to interfere with individual constitutional rights depends primarily on the intrusiveness of that state action”.

[126]      The decision of the Ontario Court of Appeal in Jones provides helpful guidance on identifying the “intrusive state action” that may engage a traveller’s constitutional rights. Jones had argued that he became the target of a criminal investigation, and was therefore detained, as soon as the suspicions of the Customs authorities were raised. In rejecting that argument, the court noted that, “in a general sense, everyone who is questioned at the border and whose luggage is examined is the target of an investigation”. The mere fact that a person “has attracted the suspicion of a Customs official, thereby causing that official to ask routine questions and conduct a routine search, should not give that individual any enhanced constitutional protection”: Jones at para 40. The court drew the following line, at paras 41-42:

[127]      The reasoning in Jones was followed in R v Sinclair, 2017 ONCA 287. In the latter case, the appeal court concluded that Sinclair was not detained until after her luggage was x-rayed as part of routine screening. The court accepted the trial judge’s conclusion that it was after the x-ray that the border officer “had a sufficiently strong particularized suspicion to warrant a more intrusive form of inquiry”: para 9.   

[128]      We would draw the same line when defining detention at the border for purposes of s 10 in this case. Detention occurs when the inquiry moves from “routine questioning” to a more intrusive form of inquiry, initiated on the basis of a sufficiently strong particularized suspicion and with significant legal consequences. We have already determined that the search of a traveller’s personal electronic device, beyond what is required for routine screening, constitutes a shift to a more intrusive form of inquiry. Wilson J, in her concurring reasons in Jacoy, noted that “in situations involving searches and seizures during periods of arrest or detention the citizen's right to retain and instruct counsel without delay under s. 10(b) of the Charter and his or her right to be secure against unreasonable search and seizure are mutually re‑inforcing. The right to counsel is surely the main safeguard to the citizen that his or her other rights will be respected”: para 30.

[129]      Not every search of a personal electronic device will amount to a detention. As was noted in Fearon, the search of a cell phone is not an equivalent intrusion to the strip search of a person. Some searches of personal electronic devices may fall under the rubric of “routine questioning” and not a more intrusive invasion of privacy. An obvious example would be receipts for imported goods and travel-related documents, stored in electronic format. A search for such items at the border would be considered routine. A wholesale search of a traveller’s correspondence or photos would not.

[130]      In our view, the line from routine questioning to more intrusive search is crossed when the BSO develops “some sufficiently strong particularized suspicion”, sufficient to permit a broader search of the traveller’s electronic device, beyond what is required for routine screening.

[131]      In R v Sekhon, 2009 BCCA 187, 67 CR (6^th) 257, for example, the appellant was subject to a search of his vehicle, which the court described as part of “the normal screening process”: para 10. He was not free to go, but was not detained for purposes of the Charter. He was detained when the process moved into something more serious, beyond routine screening. This point occurred when “it became apparent that cocaine was contained in a hidden compartment” (para 75); at that point the officers decided that the appellant should be detained and advised of his right to counsel. An analogous line can be drawn with respect to the searches of the appellants here.

[132]      Mr. Canfield was subject to the normal screening process when he was referred to secondary screening, when his luggage was searched, and when he was asked whether he might have any child pornography on his phone. To that point there was no detention. The screening moved beyond routine after Mr. Canfield answered “yes” to the question about his possession of child pornography and showed the BSO an image that constituted child pornography; certainly it moved beyond routine when the BSO decided to conduct a more thorough search of the images on the phone. At that point, Mr. Canfield became the subject of a particularized suspicion and was subjected to a more intrusive search of his personal electronic device, in an interaction with significant legal consequences. He was detained, and should have been advised of his right to counsel pursuant to s 10.

[133]      The analysis with respect to Mr. Townsend’s detention is similar. His referral to secondary screening was a part of routine questioning, as was the search of his luggage. He was referred because he had an unusually high number of bags given his travel pattern as a backpacker, and because of his mannerisms, including ceasing to make eye contact and giving quieter and less confident responses to questions. One of the officials who examined Mr. Townsend at secondary screening, BSO Atherton, testified that he would not examine every electronic device in a secondary examination, but would do so if indicators warranted its examination. Indicators included a traveller’s mannerisms, coming from source countries for child pornography, including the United States, being in possession of electronic devices and being employed in the technology field. Several electronic devices, including laptops, external hard drives and smart phones, were found in Mr. Townsend’s luggage. Mr. Townsend became more agitated during the inspection. BSO Atherton then accessed the photographs on one of the cell phones and found legal pornographic images.

[134]       Some 10 minutes after the inspection of Mr. Townsend’s luggage began, BSO Aboagye began examining his laptop. It was password protected, so she requested the password. Mr. Townsend was reluctant to give the password, but eventually did so. In less than ten minutes BSO Aboagye found an item of child pornography on the laptop; at that point she attempted to arrest Mr. Townsend under the Customs Act.

[135]      At some point in this interaction, the questioning of Mr. Townsend and the inspection of his belongings moved from routine screening to a more intrusive level of search and a greater invasion of privacy. That point may have occurred when BSO Atherton scanned Mr. Townsend’s cell phone to look for contraband items. In our view, the line to intrusive search, and the point at which Mr. Townsend was certainly the subject of “particularized suspicion”, was crossed when BSO Aboagye asked for the password to his laptop so she could conduct a more thorough search. At that point, Mr. Townsend was detained and should have been advised of his s 10 rights.

[136]      Section 7 of the Charter provides that everyone has “the right to life, liberty and security of the person and the right not be deprived thereof except in accordance with the principles of fundamental justice.”

[137]      The principle against self-incrimination is a principle of fundamental justice under s 7 of the Charter: R v Porter, 2015 ABCA 279 at para 16. It has been described as a “general organizing principle of criminal law”, from which a number of rules can be derived: R v Singh, 2007 SCC 48, citing R v Jones, 1994 CanLII 85 (SCC), [1994] 2 SCR 229 at p 249 per Lamer J. At para 21 of Singh, the court reiterated the following description of the principle of self-incrimination (from R v White, 1999 CanLII 689 (SCC), [1999] 2 SCR 417 at para 44 per Iacobucci J):

[138]      The appellants submit that their right to be protected from self-incrimination was violated by the use at their criminal trial of certain information they provided to the BSOs in the course of the secondary screening process. In Mr. Canfield’s case, it is said to include his response to the question of whether he had child pornography on his cell phone, and his manipulation of the cell phone to show BSO Rai the suspected image. In Mr. Townsend’s case, it is said to include his provision of the password to unlock his notebook computer.

[139]      Both appellants say they were compelled to provide the incriminating information by s 11 of the Customs Act, which requires persons entering Canada to “answer truthfully any questions asked by the [customs] officer in the performance of his or her duties”. Providing false or deceptive statements can result in prosecution, and liability for fines or imprisonment: Customs Act, ss 153 and 160.

[140]      The Crown denies that the appellants’ s 7 rights were infringed. It says s 7 rights are not engaged at the border because no one is compelled to present themselves at the border and they do so of their own volition. In the alternative, the appellants’ s 7 rights were not breached because the principle against self-incrimination is not absolute. The appellants were not detained at the time the statements were made, and no relevant statements were made by them following the discovery of child pornography.

[141]      The principle against self-incrimination does not provide “absolute protection for an accused person against all uses of information that has been compelled by statute or otherwise”: White at para 45. “The contextual analysis that is mandated under s 7 of the Charter is defined and guided by the requirement that a court determine whether a deprivation of life, liberty, or security of the person has occurred in accordance with the principles of fundamental justice”: White at para 47, emphasis in original. “It is the balancing of principles that occurs under s 7 of the Charter that lends significance to a given factual context in determining whether the principle against self-incrimination has been violated. In some contexts, the factors that favour the importance of the search for truth will outweigh the factors that favour protecting the individual against undue compulsion by the state”: White at para 48.

[142]      White identifies three stages to be analyzed when determining whether s 7 has been infringed (at para 38):

[143]      The decision of the Ontario Court of Appeal in Jones again provides a useful analytical construct. Jones had made false statements under statutory compulsion in response to routine questioning by border officials. Subsequently, his luggage was searched and cocaine was found. The statements were used as evidence in his criminal trial, and he argued their use breached his s 7 rights against self-incrimination. The court had no difficulty in finding that the first two stages in White were met: Jones’ “liberty interest was clearly at stake in the criminal proceedings in which the statements were tendered against him”; and the operative principle of fundamental justice said to be infringed by the admission of the statements was the principle against self-incrimination: para 26. At the third stage, the court noted that “context becomes crucial” and “the court must consider the extent to which the rationale underlying the principle against self-incrimination is engaged in the specific circumstances, and the extent to which countervailing principles of fundamental justice operate in the specific circumstances”: para 27.

[144]      The key context in Jones, as in this case, was that the impugned statements were made at the border in the course of questioning by Customs authorities. As the court noted, at para 30, “[n]o one entering Canada reasonably expects to be left alone by the state, or to have the right to choose whether to answer questions routinely asked of persons seeking entry to Canada”. The court went on to state:

[145]      We agree. We also agree with the Ontario court’s observation that effective border control is vitally important, and claims of self-incrimination of the kind made here “must be balanced against the equally fundamental societal claim to the preservation of the integrity of Canada’s borders through the effective enforcement of its laws at those borders”: para 31. This includes the enforcement of Canada’s laws against the importation of child pornography.

[146]      It is well established that routine questioning at the border is not a sufficiently intrusive state action to amount to a detention, even when there is a statutory duty to answer those questions: see Simmons at p 517; Dehghani at p 1074; Jones at para 35. Absent detention, there is no constitutional right to counsel and no constitutional right to remain silent at the border: Jones at para 36; R v Hebert, 1990 CanLII 118 (SCC), [1990] 2 SCR 151 at p 201. As was noted previously in our analysis of the appellants’ claims under s 10, “the extent to which state action at the border will be said to interfere with individual constitutional rights depends primarily on the intrusiveness of that state action”: Jones at para 32. We agree with the views expressed at para 37 of Jones, that routine questioning and routine searches at the border do not engage a traveller’s s 7 rights:

[147]      We agree with the balancing exercise undertaken in Jones. “The mere fact that a person has attracted the suspicion of a Customs official, thereby causing that official to ask routine questions and conduct a routine search, should not give the individual any enhanced constitutional protection against self-incrimination”: Jones at para 40. However, we reject the proposition that s 7 rights can never be engaged at the border simply because individuals voluntarily present themselves in order to enter the country. Such an analysis is inconsistent with the recognition in Simmons, Jacoy, Jones and Sinclair that Charter rights may be triggered at the border when a traveller is subjected to a higher level of state intrusiveness.

[148]      The description at paras 41 and 42 of Jones of the circumstances in which the principle against self-incrimination might be engaged at the border is worth repeating here:

[149]      We agree with the analysis undertaken by the Ontario Court of Appeal in Jones, and also in Sinclair: there can be a point where, what began as routine questioning and a routine search of belongings, becomes sufficiently intrusive that it qualifies as a detention that engages Charter rights. Absent detention, there is no right to counsel and no right to remain silent. Neither the existence of a statutory duty to answer the questions posed, nor the criminal penalties attendant on failing to do so honestly, gives rise to constitutional rights as long as the interaction remains part of routine questioning by Customs officials: Dehghani at para 41. The values animating the protection against self-incrimination are not implicated when a traveller is compelled to answer routine questions: Jones at para 37. The answers to such questions can, accordingly, be received in subsequent proceedings without violating the principle against self-incrimination.

[150]      If and when a traveller is detained, however, his rights to counsel and to remain silent are engaged. If he is compelled by statute to answer questions at that point, the admission of those compelled statements may well violate the principle against self-incrimination.

[151]      Mr. Canfield submits that any statements made by him to the BSOs were compelled under s 11 of the Customs Act and, therefore, engage the principle against self-incrimination enshrined in s 7 of the Charter. He argues that this would include his admission in response to the question posed by BSO Rai about whether he had child pornography on his electronic device and his actions in pulling up an image in response to the request to pull up the most clear-cut image of child pornography. At the time that Mr. Canfield made this statement, he was subject to routine questioning. Individuals who choose to import goods when they enter Canada can reasonably expect to be asked questions about the goods which they are bringing with them, as part of routine questioning, such as:

[152]      We are satisfied that Mr. Canfield’s admission that he had child pornography was made in the course of routine questioning prior to his detention and that the use of this admission in his criminal trial does not offend his s 7 rights.

[153]      For the reasons set out in our analysis of Mr. Canfield’s s 10 rights, we are satisfied that he was detained when he was asked to pull up an image of child pornography on his cell phone. That was the start of a more intrusive inquiry, beyond routine questioning, and Mr. Canfield’s Charter right to counsel and right to silence were engaged. Any statements made by Mr. Canfield past that point would be protected by the principle against self-incrimination and their admission in criminal proceedings would breach his rights under s 7.

[154]      The same analysis applies to Mr. Townsend. Again, for the reasons set out in our s 10 analysis, we are satisfied that he was detained at the point when the BSO demanded his password so that she could conduct a more thorough search of his laptop computer, and his s 7 rights were engaged. Any statements made by Mr. Townsend past this point would be subject to the right against self-incrimination.

[155]       Section 24(2) of the Charter provides:

[156]      While a reviewing court generally defers to the trial judge’s s 24(2) analysis, a fresh s 24(2) analysis on appeal may be necessary where the trial judge has made errors. As was noted in R v GTD, 2017 ABCA 274 at paras 7-8, rev’d on other grounds 2018 SCC 7, at paras 7 and 8:

[157]      As we have concluded that the searches of the appellants’ electronic devices offended their rights under s 8 of the Charter and that their rights under ss 10(a), 10(b) and 7 were infringed, we must now consider whether the evidence obtained should be excluded under s 24(2).

[158]      In Grant, the Court identified three factors to be considered in assessing the effect of admitting the evidence on society’s confidence in the justice system (at para 71):

[159]      The first stage focuses on the culpability of the authorities who conducted the search while the second stage focuses on the harm caused by the search. The final stage considers the effect of admission or exclusion on the truth-seeking function of the trial. These three avenues of inquiry are to be viewed from a “long-term, forward-looking and societal perspective”: Grant at para 71.

[160]      The Court must assess the state conduct to determine if it is so severe and deliberate that the Court must disassociate itself to preserve public confidence in the justice system: Grant at para 72. If the authorities are acting in good faith, pursuant to what they thought were legitimate policies, the state conduct will be less serious. Good faith reduces the culpability of the authorities and the seriousness of the state conduct; however, ignorance of, or negligence or wilful blindness to, Charter standards is not good faith, and a pattern of abuse will support exclusion: Grant at para 75.

[161]      The appellants say there is a pattern of negligence and abuse in the actions of the border officials. They say the BSOs were not following the CBSA’s own policies and ignored recent Supreme Court jurisprudence on the important privacy interests in electronic devices. The Crown says the BSOs reasonably relied on their powers under the Customs Act. There was no institutional negligence, as the CBSA reasonably relied on Simmons and other jurisprudence as providing almost unlimited search powers at the border.

[162]      The BSOs here faced a similar situation to the police in Fearon. The Supreme Court in that case found that, while there may have been some gray area in this area of the law, “it was a very light shade of gray, and [the police] had good reason to believe, as they did, that what they were doing was perfectly legal”: para 94.

[163]      In this case, with respect to s 8, the dominant view based on historical jurisprudence was that customs officials could search electronic devices at the border. The trial judge found that the BSOs “were genuinely attempting to enforce the Act as they understood it” and that there was “no evidence of bad faith or capricious behaviour”: para 103.

[164]      We do not see how evidence of non-compliance with a 2015 internal policy is relevant to the seriousness of the state conduct in 2014. The BSOs acted in accordance with the existing statutory requirements. Moreover, “there were ample ‘objective, articulable facts’ … to support the customs officer’s suspicion” (Simmons at 534), and the searches were carried out in a reasonable manner.

[165]      This analysis extends to the breach of the appellants’ rights under s 10 and s 7 as well. In the case of Mr. Canfield, although the BSO should have informed Mr. Canfield of his right to retain and instruct counsel before he finished searching his cell phone, the BSO was operating under a good faith understanding of the powers afforded under the Customs Act. Additionally, given the absence of bad faith or capricious behavior related to failure to provide access to a lawyer or compel answers to the questions being asked, the seriousness of the Charter-infringing state conduct is on the low end of the spectrum.

[166]      With respect to Mr. Townsend, the BSOs were operating under a similar good faith understanding and instructed Mr. Townsend of his right to counsel after the discovery of an image that appeared to be child pornography. While not as prompt as they should have been, especially when confronted with Mr. Townsend’s inquiries about whether he needed a lawyer, the BSOs did not demonstrate an egregious level of Charter-infringing conduct on the ss 10 and 7 breaches.

[167]      We conclude that the BSOs acted reasonably in the good faith belief that their actions were authorized by law. This factor favours admission.

[168]      In this line of inquiry, the Court focuses on the accused and the extent of the infringement on his or her Charter right: Grant at para 76. This involves identifying the interests engaged by the infringed right and the extent to which the breach violated those interests.

[169]      “[A]n unreasonable search contrary to s. 8 of the Charter may impact on the protected interests of privacy, and more broadly, human dignity. An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy, or that demeans his or her dignity, is more serious than one that does not”: Grant at para 78.  

[170]      The BSO’s original search of Mr. Canfield’s electronic device was minimal in scope. After Mr. Canfield selected and showed the BSO an image of child pornography on the device, the BSO seized the phone and confirmed the existence of other child pornography images. The BSO remained within the same image folder and did not access any other applications on the device. The search lasted at most three minutes.

[171]      The original search of Mr. Townsend’s devices was more thorough. The search occurred over approximately 10 minutes and involved two BSOs. The BSOs cannot speak with certainty to the applications opened; however, based on their individual general practices, the BSOs believe they searched images and other document files but did not access the email or text messaging applications. This evidence was not contradicted at trial. After an image of child pornography was found, the search was immediately halted.

[172]      While the original searches of both Mr. Canfield and Mr. Townsend’s electronic devices were reasonably limited in scope, the devices were seized and later forensically searched under warrant. The warrants were based on evidence discovered during the earlier Charter-infringing searches. The evidence obtained under the warranted search also falls under the s 24(2) analysis.

[173]      The forensic searches involved “a detailed technical examination and analysis” of the devices. The searches were “methodical and thorough”, even viewing files that had previously been deleted.

[174]      While we do not have specific evidence on what was contained in these particular devices, electronic devices generally contain intimate correspondence; details of our financial, medical and personal situations; and reveal information about our specific interests, likes, and propensities: Morelli at para 105. The search of these devices presumably revealed “personal and core biographical information” about Mr. Townsend and Mr. Canfield and therefore constituted a significant breach of their privacy interests: Marakah at para 33.

[175]      A breach of s 10 denies an individual who has been arrested or detained an opportunity to understand the reasons for their arrest and obtain legal advice relevant to their legal situation: R v Evans, 1991 CanLII 98 (SCC), [1991] 1 SCR 869 at para 31, 63 CCC (3d) 289; Sinclair. The purpose of the right to counsel is “to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights”: R v Manninen, 1987 CanLII 67 (SCC), [1987] 1 SCR 1233 at 1242-43, 41 DLR (4th) 301, affirmed in Sinclair at para 26.

[176]      Although the search of Mr. Canfield’s cellphone was minimal in scope, he was nevertheless denied an opportunity to consult a lawyer until the search was complete. This impacted his ability to appreciate the consequences facing him after he answered “yes” to the question about his possession of child pornography. Similarly, Mr. Townsend ought to have been provided an opportunity to understand his jeopardy and seek legal advice when BSO Aboagye requested password-access to his laptop. Although these interactions were brief, a brief rights-infringement is not necessarily trivial: R v Le, 2019 SCC 34 at para 155. Mr. Canfield and Mr. Townsend’s s 10 rights were both undermined in a non-trivial manner in the course of these interactions.

[177]      The protection against self-incrimination under s 7 prevents the state from compelling individuals to provide evidence to promote a self-defeating purpose: R v Jarvis, 2002 SCC 73 at para 67. It guards against state coercion and abuse of power in the context of the unequal power relationship between individual and state: White at para 51.

[178]      Mr. Canfield was lawfully required to answer questions during the part of his questioning that was routine, but the situation took on a coercive context with criminal consequences once he was detained and denied an opportunity to speak to a lawyer. Mr. Townsend experienced the same shift from lawful to unlawful coercion. The risk of abuse of state power is heightened when travellers expect to be compelled to answer questions but are unaware of when routine questioning turns to a more personalized search based on reasonable suspicion. Mr. Canfield and Mr. Townsend’s interests protected under s 7 were significantly undermined by the Charter breaches.

[179]      These factors weigh against admission.

[180]      This final line of inquiry considers whether the truth-seeking function of the courts would be served better by the admission or exclusion of the evidence. The factors considered are the reliability of the evidence, the importance of the evidence to the Crown’s case, and the seriousness of the offence: Vu at para 73, citing Grant at paras 81, 83-84.

[181]      The electronic files containing child pornography are real, highly reliable evidence: Spencer at para 80; Canfield at para 108. There is no suggestion that this evidence was in any way altered during the search. Excluding this evidence would gut the Crown’s case: Canfield at para 109.

[182]      The seriousness of the offence can cut both ways. The public interest in having the case heard on its merits is heightened when the offence is serious; however, where the penal stakes for the accused are high, there is a vital interest in having the justice system be above reproach: Grant at para 84. Both cases before us deal with child pornography. Society “undoubtedly has an interest in seeing a full and fair trial based on reliable evidence … for a crime which implicates the safety of children”: Spencer at para 80.

[183]      Society has a strong interest in the adjudication of these cases on their merits. This weighs heavily in favour of admitting the evidence obtained contrary to ss 8, 10 and 7.

[184]      On balance, society’s confidence in the justice system is best maintained through the admission of the evidence. While the impact on the appellants’ Charter-protected interests under ss 8, 10 and 7 was serious, this is just one factor in the analysis and, in this case, it is outweighed by the other Grant factors.

[185]      While predating Grant, in both Simmons and Jacoy the Supreme Court concluded that the customs officer had acted in good faith and that the evidence from a search in breach of Charter rights should not be excluded pursuant to s 24(2). In Bialski (para 119), the Court found that “even if there had been a breach of the appellants’ s. 8 Charter rights, the emails and texts viewed at the time the appellants crossed the border would not have been excluded pursuant to s. 24(2) using the analysis set out by the Supreme Court of Canada in R v Grant … because the customs officers reasonably believed that such searches were authorized by s. 99 of the Act and that belief was supported by the jurisprudence cited herein. The Supreme Court of Canada in similar circumstances, where the law was uncertain or changing, has not excluded evidence: Vu and Fearon.”

[186]      This is an evolving area of the law; there was nothing unreasonable in the reliance by the CBSA on the authority of Simmons and the jurisprudence following it. Quite the opposite; it would have been unreasonable not to rely on those authorities. The border officials acted in good faith in deciding to search the devices and in carrying out the searches. They uncovered real and reliable evidence of a serious offence that is crucial to the Crown’s case.

[187]      The evidence is admitted.

[188]      We are satisfied:

[189]      We declare that the definition of “goods” in s 2 of the Customs Act is of no force and effect insofar as it includes the contents of personal electronic devices for the purpose of s 99(1)(a) of the Customs Act.

[190]      We suspend the declaration of invalidity for one year to provide Parliament the opportunity to amend the legislation, should it wish to do so.

[191]      We conclude that:

[192]      The appellants’ convictions are upheld and their requests for new trials are dismissed.