Protecting the Right to Privacy in Digital Devices

Abstract

Canada’s courts in recent years have consistently recognized a high degree of privacy in the content of digital devices. Yet the law authorizing device searches on arrest and at the border has failed to reflect this higher interest. In both contexts, courts have assumed that the state has a compelling interest in immediate access to device data to advance pressing law enforcement objectives – but the claim is not supported by evidence. This paper builds upon earlier critical views of device search law and policy by demonstrating that searches are being carried out on arrest and at the border without clear limits, resulting in significant intrusions into personal privacy, and without effective avenues of recourse.

Part I critically examines the Supreme Court’s justification in Fearon for authorizing device searches on arrest, including its dismissal of the US Supreme Court’s approach in Riley v California (requiring a warrant). It then presents evidence to support the dissent’s argument that the majority’s test provides ineffective guidance to police to avoid unreasonable searches, and that the exclusion of evidence is not an adequate remedy. Part II examines the Canada Border Services Agency’s rationale and practice for groundless device searches under the Customs Act. It considers proposals for reform, including a Parliamentary report in late 2017 recommending a requirement of reasonable suspicion. Finally, it argues that the guarantee against unreasonable search in section 8 of the Charter requires a warrant for device searches at the border, because the state’s interest in searching devices there is less pressing than the state’s interest in searching a person.