Searches at an International Border: Difference between revisions
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{{Currency2|January|2021}} | |||
==General Principles== | ==General Principles== | ||
{{seealso|Special Search Issues}} | {{seealso|Special Search Issues}} | ||
At international border crossings all personal zones of privacy are subject to a "diminished expectation of privacy" | At international border crossings all personal zones of privacy are subject to a "diminished expectation of privacy."<ref> | ||
{{ | {{CanLIIRP|Simmons|1ftcb|1988 CanLII 12 (SCC)|[1988] 2 SCR 495}}{{perSCC|Dickson CJ}}{{atsL|1ftcb|48| to 50}} | ||
</ref> | </ref> | ||
Searches of purses and bags at point of entry are part of routine screening procedures.<ref> | Searches of purses and bags at point of entry are part of routine screening procedures.<ref> | ||
{{ | {{CanLIIRP|Nagle|fss1c|2012 BCCA 373 (CanLII)|97 CR (6th) 346}}{{perBCCA|Chaisson and Bennett JJA}} | ||
</ref> | </ref> | ||
There are three categories of border searches:<ref> | There are three categories of border searches:<ref> | ||
{{supra1|Simmons}}<br> | {{supra1|Simmons}}<br> | ||
{{ | {{CanLIIRP|Canfield|jb956|2020 ABCA 383 (CanLII)|395 CCC (3d) 483}}{{TheCourtABCA}} | ||
</ref> | </ref> | ||
# routine questioning of all travelers and may include bag search, pat or frisk of outer clothing; | # routine questioning of all travelers and may include bag search, pat or frisk of outer clothing; | ||
| Line 19: | Line 21: | ||
The search of persons crossing the international border into Canada is valid exercise of Parliament's criminal law powers.<ref> | The search of persons crossing the international border into Canada is valid exercise of Parliament's criminal law powers.<ref> | ||
{{ | {{CanLIIRPC|Little Sisters Book & Art Emporium v Canada|5239|2000 SCC 69 (CanLII)|[2000] 2 SCR 1120}}{{perSCC-H|Binnie J}}{{atL|5239|148}}<br> | ||
</ref> | </ref> | ||
{{reflist|2}} | {{reflist|2}} | ||
==Statutory Powers to Search== | |||
Absent grounds for a criminal search, the Customs Act authorizes CBSA agents to perform searches under s. 99. | Absent grounds for a criminal search, the Customs Act authorizes CBSA agents to perform searches under s. 99. | ||
| Line 51: | Line 53: | ||
The meaning of "goods" is defined broadly, stating that it "includes conveyances, animals and any document in any form." | 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" | The reference to "documents in any form" also includes "electronic documents."<ref> | ||
{{ | {{CanLIIRP|Bialski|htrr4|2018 SKCA 71 (CanLII)|364 CCC (3d) 485}}{{perSKCA|Ryan-Froslie JA}}{{atL|htrr4|111}}<br> | ||
{{CanLIIRP|Leask|1vlpf|2008 ONCJ 25 (CanLII)|[2008] OJ No. 329}}{{perONCJ|Nadel J}}{{atL|1vlpf|16}}<br> | {{CanLIIRP|Leask|1vlpf|2008 ONCJ 25 (CanLII)|[2008] OJ No. 329}}{{perONCJ|Nadel J}}{{atL|1vlpf|16}}<br> | ||
{{CanLIIRP|Saikaley|fvbkl|2012 ONSC 6794 (CanLII)|[2012] ON No. 6024}}{{perONSC|Lalonde J}}{{atL|fvbkl|70}}<br> | {{CanLIIRP|Saikaley|fvbkl|2012 ONSC 6794 (CanLII)|[2012] ON No. 6024}}{{perONSC|Lalonde J}}{{atL|fvbkl|70}}<br> | ||
{{ | {{CanLIIRx|Moroz|ft6xj|2012 ONSC 5642 (CanLII)}}{{perONSC|Desotti J}}{{atL|ft6xj|20}}<br> | ||
</ref> | </ref> | ||
{{reflist|2}} | {{reflist|2}} | ||
==Electronic Devices== | |||
; Fearon test | ; Fearon test | ||
The test for searching electronic devices incident to arrest does not apply at border crossings.<ref> | The test for searching electronic devices incident to arrest does not apply at border crossings.<ref> | ||
| Line 70: | Line 72: | ||
===Constitutionality=== | ===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.<ref> | 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.<ref> | ||
{{CanLIIRP|Jones|1p4dt|2006 CanLII 28086 (ON CA)|211 CCC (3d) 4 | {{CanLIIRP|Jones|1p4dt|2006 CanLII 28086 (ON CA)|211 CCC (3d) 4}}{{perONCA-H|Doherty JA}}{{atL|1p4dt|30}}<br> | ||
{{CanLIIRP|Singh|gfrp3|2014 ONSC 5658 (CanLII)|317 CCC (3d) 446}}{{perONSC|Pomerance J}}{{atL|gfrp3|49}}<br> | {{CanLIIRP|Singh|gfrp3|2014 ONSC 5658 (CanLII)|317 CCC (3d) 446}}{{perONSC|Pomerance J}}{{atL|gfrp3|49}}<br> | ||
</ref> | </ref> | ||
There is appellate authority to say that s. 99(1) is unconstitutional insofar as it authorizes the search of electronic devices.<ref> | There is appellate authority to say that s. 99(1) is unconstitutional insofar as it authorizes the search of electronic devices.<ref> | ||
{{ | {{CanLIIRP|Canfield|jb956|2020 ABCA 383 (CanLII)|395 CCC (3d) 483}}{{TheCourtABCA}}<Br> | ||
contra {{CanLIIRP|Bialski|htrr4|2018 SKCA 71 (CanLII)|364 CCC (3d) 485}}{{perSKCA|Ryan-Froslie JA}} | |||
</ref> | </ref> | ||
{{reflist|2}} | {{reflist|2}} | ||
Latest revision as of 14:39, 14 July 2024
| This page was last substantively updated or reviewed January 2021. (Rev. # 95519) |
General Principles
At international border crossings all personal zones of privacy are subject to a "diminished expectation of privacy."[1]
Searches of purses and bags at point of entry are part of routine screening procedures.[2]
There are three categories of border searches:[3]
- routine questioning of all travelers and may include bag search, pat or frisk of outer clothing;
- a strip or skin search conducted in a private room;
- body cavity search.
The search of persons crossing the international border into Canada is valid exercise of Parliament's criminal law powers.[4]
- ↑ R v Simmons, 1988 CanLII 12 (SCC), [1988] 2 SCR 495, per Dickson CJ, at paras 48 to 50
- ↑ R v Nagle, 2012 BCCA 373 (CanLII), 97 CR (6th) 346, per Chaisson and Bennett JJA
- ↑
Simmons, supra
R v Canfield, 2020 ABCA 383 (CanLII), 395 CCC (3d) 483, per curiam - ↑
Little Sisters Book & Art Emporium v Canada, 2000 SCC 69 (CanLII), [2000] 2 SCR 1120, per Binnie J, at para 148
Statutory Powers to Search
Absent grounds for a criminal search, the Customs Act authorizes CBSA agents to perform searches under s. 99.
- 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]
[omitted (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]
- ↑
R v Bialski, 2018 SKCA 71 (CanLII), 364 CCC (3d) 485, per Ryan-Froslie JA, at para 111
R v Leask, 2008 ONCJ 25 (CanLII), [2008] OJ No. 329, per Nadel J, at para 16
R v Saikaley, 2012 ONSC 6794 (CanLII), [2012] ON No. 6024, 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]
- ↑ United States of America v Amadi, 2018 ONSC 727 (CanLII), 367 CCC (3d) 98, 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]
There is appellate authority to say that s. 99(1) is unconstitutional insofar as it authorizes the search of electronic devices.[2]
- ↑
R v Jones, 2006 CanLII 28086 (ON CA), 211 CCC (3d) 4, per Doherty JA, at para 30
R v Singh, 2014 ONSC 5658 (CanLII), 317 CCC (3d) 446, per Pomerance J, at para 49
- ↑
R v Canfield, 2020 ABCA 383 (CanLII), 395 CCC (3d) 483, per curiam
contra R v Bialski, 2018 SKCA 71 (CanLII), 364 CCC (3d) 485, per Ryan-Froslie JA