Statutory Warrantless Search Powers

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General Principles

See also: Ancillary Powers Doctrine

The Parliament and legislatures of Canada have the ability to pass legislation that permits law enforcement and other agents of the state to warrantless searches. These powers must generally conform to the "reasonable and probable grounds" standard set out in s. 8 of the Charter to be lawful.

International Borders

At international border crossings all personal zones of privacy are subject to a "diminished expectation of privacy".[1]

  1. R v Simmons, 1988 CanLII 12 (SCC), [1988] 2 SCR 495, per Dickson CJ, at paras 48 to 50

Powers to Search

Examination of goods

99 (1) An officer may

(a) at any time up to the time of release, examine any goods that have been imported and open or cause to be opened any package or container of imported goods and take samples of imported goods in reasonable amounts;
(b) at any time up to the time of release, examine any mail that has been imported and, subject to this section, open or cause to be opened any such mail that the officer suspects on reasonable grounds contains any goods referred to in the Customs Tariff, or any goods the importation of which is prohibited, controlled or regulated under any other Act of Parliament, and take samples of anything contained in such mail in reasonable amounts;
(c) at any time up to the time of exportation, examine any goods that have been reported under section 95 and open or cause to be opened any package or container of such goods and take samples of such goods in reasonable amounts;
(c.1) at any time up to the time of exportation, examine any mail that is to be exported and, subject to this section, open or cause to be opened any such mail that the officer suspects on reasonable grounds contains any goods the exportation of which is prohibited, controlled or regulated under any Act of Parliament, and take samples of anything contained in such mail in reasonable amounts;
(d) where the officer suspects on reasonable grounds that an error has been made in the tariff classification, value for duty or quantity of any goods accounted for under section 32, or where a refund or drawback is requested in respect of any goods under this Act or pursuant to the Customs Tariff, examine the goods and take samples thereof in reasonable amounts;
(d.1) where the officer suspects on reasonable grounds that an error has been made with respect to the origin claimed or determined for any goods accounted for under section 32, examine the goods and take samples thereof in reasonable amounts;
(e) where the officer suspects on reasonable grounds that this Act or the regulations or any other Act of Parliament administered or enforced by him or any regulations thereunder have been or might be contravened in respect of any goods, examine the goods and open or cause to be opened any package or container thereof; or
(f) where the officer suspects on reasonable grounds that this Act or the regulations or any other Act of Parliament administered or enforced by him or any regulations thereunder have been or might be contravened in respect of any conveyance or any goods thereon, stop, board and search the conveyance, examine any goods thereon and open or cause to be opened any package or container thereof and direct that the conveyance be moved to a customs office or other suitable place for any such search, examination or opening.

(2) and (3) [Repealed, 2017, c. 7, s. 52]
Samples (4) ...
R.S., 1985, c. 1 (2nd Supp.), s. 99; 1988, c. 65, s. 79; 2001, c. 25, s. 59; 2017, c. 7, s. 52.

Goods

The meaning of "goods" is defined broadly, stating that it "includes conveyances, animals and any document in any form."

The reference to "documents in any form" also includes "electronic documents".[1]

  1. R v Canfield, 2018 ABQB 408 (CanLII), per Belzil J, at para 58
    R v Leask, [2008] OJ No. 329, 2008 ONCJ 25 (CanLII), per Nadel J, at para 16
    R v Saikaley, [2012] ON No. 6024, 2012 ONSC 6794 (CanLII), per Lalonde J, at para 70
    R v Moroz, 2012 ONSC 5642 (CanLII), per Desotti J, at para 20

Electronic Devices

Fearon test

The test for searching electronic devices incident to arrest does not apply at border crossings.[1]

  1. United States of America v Amadi, 2018 ONSC 727, per Dambrot J, at para 84

Constitutionality

It is not necessary that a search be based on reasonable grounds to believe an offence has been committed or that evidence will be found on inspection.[1]

The reduction of privacy rights at borders to protect Canadian sovereignty is a "sufficiently important objective" within s. 1 of the Charter analysis.[2]

It is also a valid exercise of Parliament's criminal law powers.[3]

Section 99(1)(a) of the Customs Act does not violate s. 8 of the Charter.[4]

  1. R v Jones (2006), 2006 CanLII 28086 (ON CA), 211 CCC (3d) 4 (CA), per Doherty JA, at para 30
    R v Singh, 2014 ONSC 5658 (CanLII), 317 CCC (3d) 446, per Pomerance J, at para 49
  2. R v Canfield, 2018 ABQB 408 (CanLII), per Belzil J, at para 77
  3. Little Sisters Book & Art Emporium v Canada, 2000 SCC 69 (CanLII), per Binnie J, at para 148
  4. Canfield, supra

See Also