As more people travel with smartphones loaded with personal data, concern is mounting over Canadian border officers' powers to search those phones — without a warrant.

"The policy's outrageous," said Toronto business lawyer, Nick Wright. "I think that it's a breach of our constitutional rights."

His thoughts follow a personal experience. After landing at Toronto's Pearson Airport on April 10, he said the Canada Border Services Agency (CBSA) flagged him for an additional inspection — for no stated reason.

Wright had just returned from a four-month trip to Guatemala and Colombia where he studied Spanish and worked remotely. He took no issue when a border services officer searched his bags, but drew the line when the officer demanded his passwords to also search his phone and laptop.

Wright refused, telling the officer both devices contained confidential information protected by solicitor-client privilege.

He said the officer then confiscated his phone and laptop, and told him the items would be sent to a government lab which would try to crack his passwords and search his files.

"In my view, seizing devices when someone exercises their constitutional right is an affront to civil liberty," said Wright who's still waiting for the return of his phone and laptop. Meanwhile, he said he has spent about $3,000 to replace them.

Officers can search your phone

According to the CBSA, it has the right to search electronic devices at the border for evidence of customs-related offences — without a warrant — just as it does with luggage.

If travellers refuse to provide their passwords, officers can seize their devices.

The CBSA said that between November 2017 and March 2019, 19,515 travellers had their digital devices examined, which represents 0.015 per cent of all cross-border travellers during that period.
Officers uncovered a customs-related offence during 38 per cent of those searches, said the agency.

While the laws governing CBSA searches have existed for decades, applying them to digital devices has sparked concern in an era where many travellers carry smartphones full of personal and sometimes very sensitive data.

A growing number of lawyers across Canada argue that warrantless digital device searches at the border are unconstitutional, and the practice should be stopped or at least limited.
"The policy of the CBSA of searching devices isn't something that is justifiable in a free and democratic society," said Wright who ran as a Green Party candidate in the 2015 federal election.

"It's appalling, it's shocking, and I hope that government, government agencies and the courts, and individual citizens will inform themselves and take action."

'Out of date' laws

Consumer advocacy group, OpenMedia is already taking action. It has launched an online and ad campaign to raise awareness about digital border searches and pressure the federal government to update the rules that govern them.

"These laws are incredibly, incredibly out of date," said OpenMedia privacy campaigner Victoria Henry.
"The way they treat our digital devices are as mere goods and that's the same classification as a bag of T-shirts."

She wants to see separate border rules for digital devices which stipulate reasonable grounds for a search. Henry also said those rules must be clearly laid out to the public.

"We need to have clear and transparent policies and mechanisms for recourse."

The federal government says that its current policies are both reasonable and necessary to keep Canadian borders secure.

CBSA officers are directed to disable any internet connection and only examine content that is already stored on a device, said Scott Bardsley, spokesperson for Public Safety Minister Ralph Goodale, in an email.
He also said that digital searches "should not be routine" and that "officers may only conduct a search if there are multiple indicators that evidence of contraventions may be found on a device."

Wright said, in his case, no rationale was provided why his phone and laptop needed to be examined.

"There were no factors that I'm aware of that would justify the searches."

'Respect for privacy'

Public Safety spokesperson Bardsley also said that CBSA officers understand the importance of solicitor-client privilege and are instructed not to examine documents that fall within that scope.

"CBSA officers are trained to conduct all border examinations with as much respect for privacy as possible."

Wright said that wasn't his experience. Instead, the officer he dealt with neither expressed knowledge of, nor responded to his concerns that his laptop and phone contained solicitor-client privileged documents, he said.

"His response was only to demand the passwords to access both."
Bardsley said that if travellers have issues or concerns, they can submit a complaint to the CBSA. He added that the government is investing $24 million to enhance oversight by creating an independent review body for the agency.

Wright has already submitted his complaint to the CBSA which includes a demand for the immediate return of his phone and laptop, plus compensation for having to temporarily replace them.

If and when he gets them back, his battle may not be over; Wright is now considering legal action.
"I think it's important that we all stand up for our civil liberties and our charter rights," he said.


Watch: What border officers can search on your phone