Searches at an International Border

General Principles

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

Searches of purses and bags at point of entry are part of routine screening procedures.

There are three categories of border searches:

1. routine questioning of all travelers and may include bag search, pat or frisk of outer clothing;
2. a strip or skin search conducted in a private room;
3. body cavity search.

The search of persons crossing the international border into Canada is valid exercise of Parliament's criminal law powers.

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.

– Customs Act

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."

Electronic Devices

Fearon test

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

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.

There is appellate authority to say that s. 99(1) is unconstitutional insofar as it authorizes the search of electronic devices.