# Here’s What To Do If A Border Guard Wants To Search Your Phone



## BeyondTheNow (4 Aug 2018)

I’ve loosely followed articles here and there related to this. But seeing as I rarely go into the US (the last time was 2007 and the last time I left North America was 2005) I haven’t thought too much about it. 

I’m obviously not concerned about what agents would find. What concerns me is the seemingly arbitrary discretion awarded to the agents to search and the open admission that...


> ...the BCCLA warns that "border officers may not respect the law in this area..."



This has abuse of power written all over it. If someone can specifically clarify/clear up any misconceptions the article might imply, that would be helpful. 

https://m.huffingtonpost.ca/2018/08/03/border-guards-phone-search_a_23495655/


----------



## brihard (4 Aug 2018)

The state has absolute control over what enters the country via the Customs Act. There is a much lower expectation of privacy at a national border / port of entry than elsewhere, and this has been held up in court time and again.

Odds of your phone being searched at the border are slim, but it could happen. There have been Customs Act charges of obstructing or hindering a border guard for not providing a password. The one I'm aware of resulted in a guilty plea, so there's no court jurisprudence on the matter yet.

More recently we have R. v. Fearon, 2013 ONCA, which dealt with search and seizure of a cell phone incidental to arrest in a criminal context. That did afford considerably more privacy expectations with regards to one's cell phone when detained or arrested by police.

It remains to be seen, through case law, whether the principles in Fearon will be extended to some extent to Customs Act adjudications. I suspect border guards will retain considerable latitude to search phones and computers at the border.

If you are directed to give your password and you don't, you will unquestionably face seizure of your cell phone (and you won't get it back tilt he whole thing is done in court) and you will likely be charged.


----------



## trooper142 (4 Aug 2018)

This authority granted to them is very similar to the authority granted to MPs under DCAAR and ISDR when entering and exiting a defence establishment.

MPs have absolute authority to search your person and personal property. While entering, you may refuse but will be denied entry to the defence establishment until such time as you agree. Upon exit, you have no right to refuse, and if you do, you will be retained and your personal belongings will be searched anyways; and likely a ticket and maybe charges will follow.

I don't believe anyone has attempted to extend this authority to searching of cell phones, but if someone from the JAG could chime in? 

Ultimately the use of these authorities is in the interest of security of the defence establishment and it's assets. It is well established. MPs also have the right to stop and demand the ID of anyone on a defence establishment at anytime.

The CBSA searching phones is not an abuse of authority, it is simply an interpretation of their already existing authority at the border. I dont suspect a challenge would be successful.


----------



## Haggis (4 Aug 2018)

Please, not "Border Guards".  They are Border Services Officers (BSO). They do much more than simply "guard".

Doing anything that prevents a BSO from performing his/her duties may result in an arrest under s. 153.1 of the Customs Act (Hindering).  The threshold for hindering is similar to but lower than for Obstruction under the s. 129 of the Criminal Code.  Yes, Canadians have a *right* to re-enter Canada, but they and all their goods, vehicles etc. are subject to examination to ensure you are in compliance with Canadian laws, just like everyone else entering the country..

Good practices to follow are:

a.  to not store things on your electronic devices that you wouldn't want yourr family members to find; and

b. don't be a dick to someone who can ruin your day.


----------



## Jarnhamar (4 Aug 2018)

If instructed to do so does someone crossing the border have to provide passwords for their email or social media accounts? Or provide a password for locked folders on a cell phone?


----------



## RocketRichard (4 Aug 2018)

This.  I certainly hope that just cause is required to search Canadian citizens' phones and/or laptops...


----------



## Haggis (4 Aug 2018)

Jarnhamar said:
			
		

> If instructed to do so does someone crossing the border have to provide passwords for their email or social media accounts? Or provide a password for locked folders on a cell phone?



Just to the device to examine local content.  If you require a separate password to log onto an app on the phone (i.e. Facebook), then, no.  (https://www.priv.gc.ca/en/privacy-topics/public-safety-and-law-enforcement/your-privacy-at-airports-and-borders/#toc1a)


----------



## brihard (4 Aug 2018)

RocketRichard said:
			
		

> This.  I certainly hope that just cause is required to search Canadian citizens' phones and/or laptops...



Not on entering the country, no. The contents of your digital devices, to an extent, can be inspected for customs purposes / admissibility just like anything else. Note that inadmissibility lists also include various forms of media deemed to be obscene or hate propaganda. They have the legal authority to look for such materials that are prohibited from importing. 'Just cause' is not something with any meaning in Canadian law anyway, bu you would be thinking 'reasonable grounds'. In any case, very different thresholds apply for border / customs inspections versus criminal investigations. A Border officer has much more power to arbitrarily search at a port of entry than a police officer does on the street.



			
				Haggis said:
			
		

> Please, not "Border Guards".  They are Border Services Officers (BSO). They do much more than simply "guard".



Yup, sorry about that.


----------



## MARS (4 Aug 2018)

The article is nothing more than fear mongering garbage, but then again, it comes from HuffPost, which is a dressed up version of a supermarket tabloid, IMO.



> ...the BCCLA warns that "border officers may not respect the law in this area..."



Well, this kind of hyperbole certainly suits the ends of the BCCLA.

So, nothing in the article to elaborate the basis for that statement.  Here is what the long-version of the guide actually does say, under the 'Soliciter-Client Privilege' section:



> Concern remains, however, that claims of solicitor-client privilege may not be respected by CBSA officers at the border. For example, in a recent court decision, it was revealed by a CBSA officer that “he did not see any limitation on searching a lawyer or judge’s phone if they were crossing the border.”



Nothing to indicate that the guard in question was actually searching privileged files, only that the guard saw no reason to NOT search a lawyer or judge's phone, simply by virtue of being a member of either of those occupations.

Indeed, the guide actually says this (emphasis added):



> To date, no court cases have put limits on the searches of electronic devices that can be conducted by the CBSA. *However, the CBSA documents obtained by the BCCLA indicate that the CBSA hopes to avoid challenges to their search powers, so may be limiting searches to what they believe is allowed by the Charter.*



But of course, a statement like that being included in the article or any other public statements won't sell papers, nor will it serve the ends of the BCCLA.


----------



## FJAG (5 Aug 2018)

Brihard said:
			
		

> The state has absolute control over what enters the country via the Customs Act. There is a much lower expectation of privacy at a national border / port of entry than elsewhere, and this has been held up in court time and again.
> 
> Odds of your phone being searched at the border are slim, but it could happen. There have been Customs Act charges of obstructing or hindering a border guard for not providing a password. The one I'm aware of resulted in a guilty plea, so there's no court jurisprudence on the matter yet.
> 
> ...



The Ont CA decision of R v Fearon was upheld by the SCC in a 4 to 3 judgement. 

https://www.canlii.org/en/ca/scc/doc/2014/2014scc77/2014scc77.html?

I tend to agree with the dissenting judges but what I think and $4.00 will buy you a coffee at Starbucks. The SCC put down four conditions which need to be met for a warrantless search of a cell phone be legal which include that 1) there be a lawful arrest, and 2) that the search is truly incidental to arrest.

S 8 of the Charter provides that "Everyone has the right to be secure against unreasonable search or seizure." The fact that when arrested, the common law provides for incidental searches makes such a search reasonable when done within the parameters now set down by the SCC. 

The SCC has not (to my knowledge) made any determination as to what would constitute a "reasonable" search in border situations. In most situations border searches of vehicles etc are based on hunches and suspicions but are generally reasonable because there is a state interest in securing borders against contraband. 

I think a cell phone is different, however. While I would consider it perfectly reasonable to check the cell phone's (or computer's) battery case for contraband or switch it on to determine if it is an active device and not a dummy stuffed with contraband, I would think that searching the phone/computer's files goes into the realm of an unreasonable "fishing expedition" for evidence unrelated to border security. 

Per Fearon, even in arrest situations cell phone searches should generally only be for recent photos or emails that may be evidence of the crime at issue. While I could see that the courts could put a similar authority/safeguard on border searches, IMHO, I think that computer files for returning Canadians (as opposed to foreign visors) should be free from searches on the grounds that such searches at a border fall far below the balancing of state objectives v privacy standards that is at the heart of searches incidental to arrest. The balance should fall much more in favour of the innocent Canadian citizen's right to privacy.

On the other hand I'm not about to be the one wanting to test the law. They can search my antique cell phone and, almost as old, laptop as much as they want.

 :cheers:


----------



## brihard (5 Aug 2018)

FJAG said:
			
		

> The Ont CA decision of R v Fearon was upheld by the SCC in a 4 to 3 judgement.
> 
> https://www.canlii.org/en/ca/scc/doc/2014/2014scc77/2014scc77.html?
> 
> ...



Border searches of phones/laptops are more about stuff like child porn, hate propaganda, etc. Media content can and does still constitute ‘goods’ deemed inadmissible. If you want to shake your head in bemusement at the creative naming of some truly horrendous porn, CBSA has a quarterly email listing all the titles of films, comics, and other media deemed inadmissible in the last three months.


----------



## FJAG (5 Aug 2018)

Brihard said:
			
		

> Border searches of phones/laptops are more about stuff like child porn, hate propaganda, etc. Media content can and does still constitute ‘goods’ deemed inadmissible. If you want to shake your head in bemusement at the creative naming of some truly horrendous porn, CBSA has a quarterly email listing all the titles of films, comics, and other media deemed inadmissible in the last three months.



But you have to admit that as far as a Canadian citizen who has left the country and is returning is concerned, the search for those types of items is really just a sham. This type of material is easily attainable for those individuals so inclined through a dark web transaction rather than going across the border to get it and bring it back.

All these searches are is the government taking an opportunity to peak into your computer/phone to see if there is anything offensive/criminal there. Undoubtedly it was there long before the individual left the country in the first place. I would think that someone who truly crossed the border to pick something like this up would have a better plan to bring it back than simply loading it on their phone or computer.

I liken this with a traffic stop for a busted taillight where the cop asks to search the car because "if you've got nothing to hide then why wouldn't you let us search your car." or "We're just detaining you at this point so we need to search your car for our safety." You see a couple of those in every Live PD episode. 

It's a whole different story for foreign sources who may be mailing or transporting their products into the country.

 :cheers:


----------



## brihard (5 Aug 2018)

FJAG said:
			
		

> But you have to admit that as far as a Canadian citizen who has left the country and is returning is concerned, the search for those types of items is really just a sham. This type of material is easily attainable for those individuals so inclined through a dark web transaction rather than going across the border to get it and bring it back.
> 
> All these searches are is the government taking an opportunity to peak into your computer/phone to see if there is anything offensive/criminal there. Undoubtedly it was there long before the individual left the country in the first place. I would think that someone who truly crossed the border to pick something like this up would have a better plan to bring it back than simply loading it on their phone or computer.
> 
> ...



I think you greatly overestimate how much time the BSOs have to dabble in speculation. Nor is it a sham, because remarkably a lot of criminals are actually really stupid and end up having this stuff on their phones.

As for your traffic stop example - not a particularly good one, because for many years now case law has made that sort of thing such a total waste of time through evidentiary exclusion that we don't bother. 

Be cautious drawing too much inference from rather selective Live PD broadcasts, and applying it to what is happening north of the border on the street. We seem to operate with considerably less freedom in that regard than the US cops do. And of course, on Live PD you're also not privy to a lot of the info that the police officers have coming in as well, even in real time. I'm not saying there aren't any cops out there going on fishing expeditions. I will say that by the time they've chosen to act on the tail light that's out, they probably already know or at least reasonably (and strongly) suspect more about the car and the owner (and their activities) than they may be letting on.

I've got tremendous respect for your legal experience. I'm not confident that you're still that up to speed on what the reality looks like at the PoE or on the street for the uniformed members doing the job on the ground... There is far less freedom of action than has historically been the case.


----------



## Infanteer (5 Aug 2018)

Brihard said:
			
		

> If you want to shake your head in bemusement at the creative naming of some truly horrendous porn, CBSA has a quarterly email listing all the titles of films, comics, and other media deemed inadmissible in the last three months.



https://www.cbsa-asfc.gc.ca/alert-avis/piu-uip-eng.html

It's almost like driving past a car accident....


----------



## brihard (5 Aug 2018)

Infanteer said:
			
		

> https://www.cbsa-asfc.gc.ca/alert-avis/piu-uip-eng.html
> 
> It's almost like driving past a car accident....



That's the one! It's like a train wreck that you forget will appear in your email every few months, and 100% free of spam. Always good for a chuckle.


----------



## Infanteer (5 Aug 2018)

I subscribed out of curiosity.  I sure I'm going to hate you within 3 months....  :tsktsk:


----------



## FJAG (5 Aug 2018)

Brihard said:
			
		

> . . .
> Be cautious drawing too much inference from rather selective Live PD broadcasts, and applying it to what is happening north of the border on the street. . . .
> 
> I've got tremendous respect for your legal experience. I'm not confident that you're still that up to speed on what the reality looks like at the PoE or on the street for the uniformed members doing the job on the ground... There is far less freedom of action than has historically been the case.



Not to worry. I wasn't drawing a comparison between Canadian and US police. All I was doing was saying that, IMHO, searches of files on cell phones and computers of Canadian citizens at the border where there is no reasonable or probable grounds is like some of the nonsense that goes on south of the border. Fishing expeditions in their purest form.

Not to worry about your lack of confidence in my being up to date either. I stopped practicing law in 2006 in order to go on a three year Class B to ramrod an IT project at NDHQ. Believe me, if anyone knows that my legal currency is beyond it's "Best Before" date, it's me. On top of that criminal law was never my preferred area of practice so my knowledge of what the police on the street do is more a result of my reading and writing police procedural novels. 

That said however I can still analyze case law (like Fearon) and try to forecast where the courts may go in the future. Based on a 4 to 3 decision (where even the majority considered the police actions a s 8 breach of Charter rights but considered the search an _honest mistake, reasonably made_ by the police and therefore insufficient to exclude the evidence) and for the reasons enumerated by the dissenting judges, I conclude that a deliberate policy of searching the files of computers at the border when there are no RPGs may very well not pass muster with the SCC if a case ever gets to that level. There are currently a number of cases working their way upward.

https://www.cbc.ca/news/technology/lawyers-canada-warrantless-smartphone-searches-customs-act-1.4247036

 :cheers:


----------



## ModlrMike (5 Aug 2018)

One could argue that a cellphone, or other electronic device is simply a container, similar to any other container one might have in their possession. How is a banker's box full of personal papers any different? In that context then, it might be reasonable for CBSA to have the power to search it, as they would anything else. That being said, I agree that Sect 8 is still in play notwithstanding that the border is in essence a reverse onus atmosphere where one has to prove their bona-fides prior to entry.


----------



## FJAG (5 Aug 2018)

ModlrMike said:
			
		

> One could argue that a cellphone, or other electronic device is simply a container, similar to any other container one might have in their possession. How is a banker's box full of personal papers any different? In that context then, it might be reasonable for CBSA to have the power to search it, as they would anything else. That being said, I agree that Sect 8 is still in play notwithstanding that the border is in essence a reverse onus atmosphere where one has to prove their bona-fides prior to entry.



S 8 is not amenable to a reverse onus basis. Reverse onus legislation/regulation is at the very low end of the scale where penal consequences do not exist.

The SCC treats cell phones differently from other objects. See as follows from Fearon:



> [51]                          It is well settled that the search of cell phones, like the search of computers, implicates important privacy interests which are different in both nature and extent from the search of other “places”: R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, at paras. 38 and 40-45. It is unrealistic to equate a cell phone with a briefcase or document found in someone’s possession at the time of arrest.  As outlined in Vu, computers — and I would add cell phones — may have immense storage capacity, may generate information about intimate details of the user’s interests, habits and identity without the knowledge or intent of the user, may retain information even after the user thinks that it has been destroyed, and may provide access to information that is in no meaningful sense “at” the location of the search: paras. 41-44.



 :cheers:


----------



## Cloud Cover (5 Aug 2018)

Hmmm.... searches conducted by CBSA will be examined on the basis on the underlying authority that gives them the power to search. They will not be held to a law enforcement standard under the _Criminal Code,_ they will be held to a Customs Act standard for the purposes of conducting the search itself.  The Federal Court (the Chief Justice) has made this clear in in decisions involving other agencies with search powers that are not derived from the _Criminal Code_, _X (Re),_ 2017 FC 1047 (CanLII) being a recent example of a search authorized by a law other than the Criminal Code. 

Really, all of this BS about abuse of search authority is just the pet project of a bunch of activists who have connections with Matt Braga at the CBC and his pals at Vice, Motherboard and Citizens Lab.  I always go back to Tony Blair's (frustrated) comments about those who seem to want to crucify state agencies over electronic surveillance: which airplane will you send your children on board- the one where nobody has been searched and for whom there are no records for any of the passengers, aircrew, ground crew and others, or the one where there is a high degree of public confidence the authorities are diligently protecting the safety and security of those who cross borders and those who live within borders.


----------



## brihard (5 Aug 2018)

whiskey601 said:
			
		

> Hmmm.... searches conducted by CBSA will be examined on the basis on the underlying authority that gives them the power to search. They will not be held to a law enforcement standard under the _Criminal Code,_ they will be held to a Customs Act standard for the purposes of conducting the search itself.  The Federal Court (the Chief Justice) has made this clear in in decisions involving other agencies with search powers that are not derived from the _Criminal Code_, _X (Re),_ 2017 FC 1047 (CanLII) being a recent example of a search authorized by a law other than the Criminal Code.



This is what I believe to be the case too. Fearon is interesting and has some persuasive value, but is of limited value because it deals with _police_ conduct in _criminal investigations_. The powers afforded to BSOs for customs purposes are quite different and more extensive, and are court-tested. However this eventually shakes out, I'm confident that BSOs will not be restricted to the criteria set out in Fearon for examination of the contents of digital devices. They aren't seeking evidence for a suspected or alleged offense; they are screening entry into the country.


----------



## Colin Parkinson (5 Aug 2018)

So if CBSA find evidence on your that suggests you committed a crime in Canada before leaving and returning, is that evidence admissible? I ask because the search is done under the Customs Act, but the alleged offense would be done in Canada, prior to leaving and would not in anyway trigger the Customs Act.


----------



## brihard (5 Aug 2018)

Colin P said:
			
		

> So if CBSA find evidence on your that suggests you committed a crime in Canada before leaving and returning, is that evidence admissible? I ask because the search is done under the Customs Act, but the alleged offense would be done in Canada, prior to leaving and would not in anyway trigger the Customs Act.



Yes, though as soon as you incidentally find evidence of a criminal offense (say for instance child porn), you should be stopping the search and getting a warrant. No different from if I were inventorying a vehicle being towed for a suspended driver, and I found a bag of drugs or a gun.


----------



## Cloud Cover (6 Aug 2018)

Their procedure is to stop the search, preserve evidence, contact RCMP who will take over investigation if the matter is criminal or strays into threat to national security threat.
For some other agencies, what is in the phone or laptop/tablet may already be a known quantity anyway.


----------



## Inspir (6 Aug 2018)

I wonder how that works with two factor authentication. I can't even log into my work laptop or cellphone unless I have a physical security key on my person.


----------



## Cloud Cover (6 Aug 2018)

The only non-trivial security is quantum safe encryption. That doesn’t mean quantum computers need to be employed to defeat it.  The biggest security loophole is end users themselves, no matter how security conscious they may be. In many cases a user of a service is forced to commit unwittingly to something that executes black code or is otherwise revealing. Two factor authentication is a 1980’s technique that is exactly what it means: it is authentication>>  not confidentiality, integrity and non-repudiation.  

Edit: https://cryptologic.ca/articles

The author makes the case....


----------



## Haggis (6 Aug 2018)

Infanteer said:
			
		

> https://www.cbsa-asfc.gc.ca/alert-avis/piu-uip-eng.html
> 
> It's almost like driving past a car accident....



And for the BSO is the Postal Mode, for example, who have to view and make a determination on this stuff, it's like parking next to that accident and watching the body parts being slowly and messily pulled out of the wreckage.  It wears on you.


----------



## Infanteer (6 Aug 2018)

Haggis said:
			
		

> And for the BSO is the Postal Mode, for example, who have to view and make a determination on this stuff, it's like parking next to that accident and watching the body parts being slowly and messily pulled out of the wreckage.  It wears on you.



I say next to a BSO on a flight once, and her job was to screen that stuff.  She said nothing in the world shocked her anymore.


----------



## Xylric (8 Aug 2018)

An interesting thought experiment comes to mind.

Suppose I were a well-known Canadian criminologist and academic, invited to give a presentation in the United States about some new method of disguising child porn, and in the process of travelling across the border, Customs Officials find the subject matter of my presentation (with actual examples - which I suspect would not happen in reality), and as a result detain me for it. What would be the process of resolving the situation? I imagine the law enforcement agency that invited me into the US would be one of the first contacted.


----------



## JesseWZ (8 Aug 2018)

Academics are not allowed to possess child porn - even for "educational purposes". 

Even as police officers, we have to be very stringent with how we find, catalogue and handle found collections of child pornography. There is a lot of layers of security and oversight with that material when its recovered.


----------



## PuckChaser (8 Aug 2018)

I have no idea why someone would need actual child pornography to teach a seminar on the ways people try to hide it. You could demonstrate the processes with cat videos and it would accomplish the same thing.


----------



## JesseWZ (8 Aug 2018)

The only time I've seen child pornography in an "academic environment" is on Integrated Child Exploitation (ICE) courses or similar. Each time, it was closely secured and provided by a police officer who worked in an ICE unit.

Typically they would form part of the instruction on cataloguing and classifying the material. It's an unpleasant process, but each image has to be evaluated to determine whether it is or isn't child porn. There are other investigative techniques conducted as well, but I won't be explaining them on an open forum.


----------



## Xylric (9 Aug 2018)

As I said, there's absolutely no reason to think anything like the thought experiment would happen in reality. What worries me is the possibility that it *could* because someone was careless - or worse yet, unaware. An IT nightmare scenario my network administrator and I have been trying to develop a defense against involves hackers planting such material on hard-drives at point of manufacture and wiping it so that only mere traces remain. I won't touch Bitcoin or any other cryptocurrency because of the way they work - the block-chain is more than likely replete with things best not touched by human hands.

I brought it up because the instructor of the forensics course I took in college (Jan 2010 semester) was simultaneously an academic and an RCMP officer (who had spent a significant portion of time in some of the more major sex crimes Canada had to deal with, as he worked the Bernardo case). He mentioned that due to the extreme nature of the material that those working the case had to examine, a few of the people involved later went on to help train US police units to enhance their ability to deal with similar cases. 

It was a poor attempt at a "worst case" example and thought experiment that stuck my mind as I came across one of the papers I wrote on child pornography and cyber security for that course. I do apologize for not articulating the question and scenario better. Basically what I wanted to know was what's likely to happen if one is *mistakenly* thought to be carrying such material. I don't know why I used the parentheses.


----------



## JesseWZ (9 Aug 2018)

Xylric said:
			
		

> As I said, there's absolutely no reason to think anything like the thought experiment would happen in reality. What worries me is the possibility that it *could* because someone was careless - or worse yet, unaware. An IT nightmare scenario my network administrator and I have been trying to develop a defense against involves hackers planting such material on hard-drives at point of manufacture and wiping it so that only mere traces remain. I won't touch Bitcoin or any other cryptocurrency because of the way they work - the block-chain is more than likely replete with things best not touched by human hands.
> 
> I brought it up because the instructor of the forensics course I took in college (Jan 2010 semester) was simultaneously an academic and an RCMP officer (who had spent a significant portion of time in some of the more major sex crimes Canada had to deal with, as he worked the Bernardo case). He mentioned that due to the extreme nature of the material that those working the case had to examine, a few of the people involved later went on to help train US police units to enhance their ability to deal with similar cases.
> 
> It was a poor attempt at a "worst case" example and thought experiment that stuck my mind as I came across one of the papers I wrote on child pornography and cyber security for that course. I do apologize for not articulating the question and scenario better. Basically what I wanted to know was what's likely to happen if one is *mistakenly* thought to be carrying such material. I don't know why I used the parentheses.



Okay, I'll take the thought experiment at it's face. While I'm not CBSA, I've worked a few files with them, so I'll have a crack at it. 

First - anytime I've ever handled CP administratively (ie to bring to the Crown or Court), it was on a stand-alone non re-writable finalized disc or drive (depending on the size of the collection) clearly labeled as containing child pornography. Attached to said disc is a chain of custody which lists everyone who had it in their possession and why.

There shouldn't be a need for anyone engaging in academic exercise to have the material on their phone or computer for *so many reasons.* Now, let's say our academic exercised *extremely poor judgement* and had the material on a digital device like a laptop or phone. If they say nothing about it, and it is found - you can bet that won't be solved at the local border level. An investigation will start, the devices will be seized, the "professor" will likely be arrested and off will his devices go for forensic analysis (with the appropriate warrant once obtained). 

If the professor was up front, had clearly labeled what he had, he still may not be allowed into the country and may be arrested. The law is pretty clear that ordinary folks (even academics) are not to possess, access, distribute or create child pornography. When you throw a border into the mix, you can run into import/export offences as well. What the American law is - I don't know, but you can bet it will be a legal mess. As an investigator, I certainly wouldn't be satisfied with a phone call to the constabulary this guy was supposed to lecture at. 

Thought experiments of this type are hard to muddle through due to the enormous amount of detail needed in order to properly contextualize what is going on. You would be better served by accessing a case law resource (such as canlii.org) and just start reading decisions.


----------



## Xylric (9 Aug 2018)

Much as I thought - when I posed the thought experiment to the instructor of that course last night, his simple response was: Anyone who did that deserves what will happen.


----------



## Pieman (9 Aug 2018)

If one doesn't want to have their info looked at when crossing then most phones/devices will backup onto the cloud. The user restores the device to factory settings and wipes everything from phone/device. You simply update your phone with your cloud data when done. This is one method high tech companies use to keep their sensitive tech data secure. For social media you can simply turn off the visibility to facebook/instagram etc. in the security settings if you don't want people digging around in there.


----------



## Haggis (9 Aug 2018)

Colin P said:
			
		

> So if CBSA find evidence on your that suggests you committed a crime in Canada before leaving and returning, is that evidence admissible? I ask because the search is done under the Customs Act, but the alleged offense would be done in Canada, prior to leaving and would not in anyway trigger the Customs Act.



Border Service Officers are peace officers and have the power to arrest for Criminal Code offences.  For example, if you drive up to a land border while impaired expect to be arrested. If you arrive by any mode (air, marine, rail or highway) while the subject of an active criminal warrant in Canada, expect to be arrested. For more detail, Brihards reply to your post lays out what the process will be once your cell phone with incriminating photos of your barn-sized unlicensed grow op in Medicine Hat is searched and seized by the CBSA.


----------



## Cloud Cover (13 Dec 2018)

CBSA searching phones; More at link: 
No surprises here except the casual reference to the search of the phone. It was a just a minor  oopsie that the IRB judge characterized him as follows:

"At the detention hearing, the CBSA strongly recommended Farah be detained a few more days until it received his full criminal record from the U.S. But Immigration and Refugee Board (IRB) member Trent Cook clearly placed more weight on Farah's admission about his background than on the agency's suspicion about the degree of his criminality.

"One of the biggest factors that play in your particular situation is your character," Cook said.

"In my estimation, you are probably one of the most honest detainees that I have ever come across," he said, noting Farah had acted "contrary" to his own interests by offering up his criminal history and gang ties.

"What this indicates to me is that you are, based on your character and behaviour, very likely to pursue all of your immigration matters in Canada with the same diligence and honesty as you have demonstrated in your interview."  :waiting:

..................


https://www.cbc.ca/news/canada/edmonton/gangster-refugee-canada-immigration-screening-1.4943292 
Botched handling of gangster refugee claimant exposes Canada's screening weaknesses
...
Evidence of criminal activity on cellphone

During a two-month investigation of Farah's case, CBC reviewed hundreds of pages of police, court, parole, and immigration records, and conducted interviews with U.S. police and immigration officials. The investigation revealed that:

Just six days after Farah was first released, he breached his conditions and was subsequently rearrested.
That same day, Nov. 8, 2017, the CBSA gained access to Farah's cellphone. It contained recent photos and videos of Farah playing with a loaded handgun, doing cocaine, concealing cocaine and flashing wads of cash. There were also front-and-back photos of a credit card that wasn't his.

Farah was on parole when the photos were taken, and was prohibited from possessing a firearm.

The phone also contained Tinder chats, photos of Farah having sex with women, and photos of women in various stages of nudity.

There was no evidence of homosexual activity. Farah's asylum claim was based on his contention that as a gay Muslim, he would be killed if he was deported to Somalia.

The IRB again released Farah on March 14, 2018. The hearing transcript doesn't mention the damning phone report.

The CBSA declined an interview request, so it is not known why the phone report was not immediately entered into the IRB hearing process. In an emailed statement, the CBSA said only that all relevant documentation and evidence had been entered into Farah's admissibility hearing.

American court, police, and FBI records show Farah's criminal record, and his gang membership, was far more extensive and serious than he had disclosed.

Farah had wilfully refused to abide by release conditions for years. CBC found at least 30 instances in which Farah breached immigration release and parole conditions in the U.S. He failed to abide by his release conditions in Canada several more times.

Farah was to have been a key witness against his own gang in a major sex-trafficking case in Nashville, Tenn., that involved girls as young as 12. But he reneged and was imprisoned for contempt of court and obstruction of justice.

Farah told CBSA and IRB officials he refused to testify because he had been assaulted and his family had been threatened. The judge in his contempt case found no evidence to support those claims and court records show Farah lied repeatedly.


----------



## Haggis (22 Dec 2018)

Just because evidence is entered at an IRB hearing doesn't mean that it has to be considered.


----------



## Colin Parkinson (16 Jan 2019)

A California court has just ruled that biometric devices are the equivalent of passwords and you cannot bee coerced into using them by a law enforcement agency.


----------



## Thompson_JM (20 Feb 2019)

FYI, in case anyone was wondering about it, the case law establishing the authority for BSO's to examine without warrant, is R. v SIMMONS.  https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/377/index.do

The MTP's to take away from this are as follows:

1. No reasonable expectation of privacy when voluntarily crossing an international border
2. All goods including electronic device are subject to examination, including locked folders. (A locked folder is viewed the same way as a locked suitcase. BSO's must be able to determine that there is not prohibited material contained within)
3. Failing to abide by this can result in the device being held, or seized for determination. Possibly charges for hindering. 
4. These exams are not done as a matter of routine. 
5. Warrants are not required until such a time as prohibited material is found. 

Lastly, to expand on previous comments, about stupid criminals.....  Abso-fricking-lutely they do keep this stuff on their phones/laptops/flash drives/etc....     

Privacy commissioner of Canada link re: Crossing borders and Airports. 
https://www.priv.gc.ca/en/privacy-topics/public-safety-and-law-enforcement/your-privacy-at-airports-and-borders/


----------



## Haggis (5 May 2019)

Here's the tale of another lawyer who didn't do his homework.  He spent four months living in a drug source country and has no idea why he was referred for a secondary examination.  Not a lawyer I would hire to defend me.


----------



## Cloud Cover (5 May 2019)

Nothing in the Rules of Professional Conduct allow a lawyer to take the privileged communications of a client across a border and expose that information to risk of search and seizure. The rules of _Lavalee_ (which are onerous) apply to CBSA and the search, but do not prevent the search itself. 
Every lawyer knows (or should know) that as a person the CBSA can perform a cursory examination of their electronic devices.  The only immunity from that is diplomatic immunity. 
A forensic search can only be obtained if the CBSA agent suspects on reasonable grounds that the Customs Act (or any regulations of the Customs Act) or any other Act of Parliament administered by the CBSA have been or might have been contravened by the person who is entering or leaving the country.

The border is not the jungle of a university campus where hysterical thesis papers seems to be accepted as the new rules of law.


----------



## PuckChaser (5 May 2019)

Haggis said:
			
		

> Here's the tale of another lawyer who didn't do his homework.  He spent four months living in a drug source country and has no idea why he was referred for a secondary examination.  Not a lawyer I would hire to defend me.



I know CBSA doesn't have to follow the Charter of Rights WRT unlawful search and seizure, but whats the probable cause (or expected outcome) of searching a guy's cell phone and laptop after all his personal effects have come up clean for drug residue after secondary search? Presumably this guy is a Canadian citizen (albeit with an unknown travel history), re-entering his home country without any indicators he's a drug/money mule. Are his emails hiding physical cocaine in them somehow? I'm all for searching people as they re-enter, but if he's passed secondary and clearly not a drug/money mule, then why is CBSA allowed to search his phone? The rules are archaic and don't jive with a modern, connected society.


----------



## Jarnhamar (5 May 2019)

Sorry if this has been asked before.

Can CBSA demand a password for my email accounts or folders inside my phone past the initial locked screen?


----------



## brihard (5 May 2019)

PuckChaser said:
			
		

> I know CBSA doesn't have to follow the Charter of Rights WRT unlawful search and seizure, but whats the probable cause (or expected outcome) of searching a guy's cell phone and laptop after all his personal effects have come up clean for drug residue after secondary search? Presumably this guy is a Canadian citizen (albeit with an unknown travel history), re-entering his home country without any indicators he's a drug/money mule. Are his emails hiding physical cocaine in them somehow? I'm all for searching people as they re-enter, but if he's passed secondary and clearly not a drug/money mule, then why is CBSA allowed to search his phone? The rules are archaic and don't jive with a modern, connected society.



1. They do ‘follow the Charter’ (or more properly are constrained by it). Any discussion of Charter applications must bear in mind S.1, the ‘reasonable limitations’ Claude.

2. The Customs Act allows for examination of all goods coming into Canada and requires that anyone bringing goods into the country submit them to inspection. This includes digital devices.

3. Prohibited goods include certain obscene materials that are not admissible to the country. This includes things like child porn and hate propaganda. This is part of what customs officers examine for. Anecdotally I’ve been given to understand that some travel patterns (eg lone male professional traveler to some less developed countries known for sex tourism) fit behavioural profiles that are indicators for secondary screening referrals.

Long story short, anyone leaving the country should know that they are subject to examination coming back in and that this will include phones, laptops, etc. There is a greatly reduced expectation of privacy at the border, and this is congruent with the ability of a sovereign state to control entry into its borders. Case law is well established on that at this point.


----------



## Haggis (5 May 2019)

PuckChaser said:
			
		

> Are his emails hiding physical cocaine in them somehow? I'm all for searching people as they re-enter, but if he's passed secondary and clearly not a drug/money mule, then why is CBSA allowed to search his phone?



A travellers e-mails could contain evidence of drug smuggling or trafficking, money laundering, child porn, hate propaganda, terrorist activity, war crimes or simply the intent to work illegally in Canada or gain access to social services benefits to which they are not entitled..

He was not "past secondary".  The Customs process was not completed.  The examination of his phone was part of that process.

A Canadian citizen has the right to reenter Canada.  However, like visitors to Canada, they and all their goods and conveyances (cars, boats, planes, etc.) are subject to examination to ensure they have made a truthful declaration and they are not importing items which are prohibited, controlled or subject to duties and taxes.  You are not more trusted as a Canadian.



			
				Jarnhamar said:
			
		

> Sorry if this has been asked before.
> 
> Can CBSA demand a password for my email accounts or folders inside my phone past the initial locked screen?



Content locally stored on the device(s) can be searched.


----------



## Jarnhamar (5 May 2019)

Haggis said:
			
		

> Content locally stored on the device(s) can be searched.



Would someone be obligated to reveal if there was hidden from view folders or programs?

I remember there was an app that on the surface was a working music app but if you pressed the icon for 8 seconds it would prompt you for a password and inside you could store pictures and files and even contacts and messenger accounts.


----------



## Haggis (5 May 2019)

Jarnhamar said:
			
		

> Would someone be obligated to reveal if there was hidden from view folders or programs?



If ti's stored on the device it can be examined. 



			
				Jarnhamar said:
			
		

> I remember there was an app that on the surface was a working music app but if you pressed the icon for 8 seconds it would prompt you for a password and inside you could store pictures and files and even contacts and messenger accounts.



The younger BSOs are quite tech savvy.  Intel is routinely shared nationally and internationally on concealment methods, both physical and technological and laws are evolving to keep up.


----------



## JesseWZ (5 May 2019)

There are more than a few apps like that, we get some training on spotting them, no doubt CBSA does as well. Fortunately, if we're at a stage where we're "ripping" the phone, the files are still discoverable.

I would argue that you are obligated to truthfully declare what you are carrying - including revealing if there are hidden files on your phone when asked. Why are they hidden? Who knows - perhaps the content is illegal, immoral, or you simply like your privacy... in any event, if an examination of the phone turns up information you chose to willfully withhold from CBSA, your day is going to get worse in a hurry. 



			
				Haggis said:
			
		

> A Canadian citizen has the right to reenter Canada.  However, like visitors to Canada, they an all their goods, and conveyances (cars, boats, planes, etc.) are subject to examination to ensure they have made a *truthful declaration* and they are not importing items which are prohibited, controlled or subject to duties and taxes.
> 
> Content locally stored on the device(s) can be searched.



What he said.


----------



## Bruce Monkhouse (5 May 2019)

Never forgot what was said to us in 1982 coming back from an exercise in Norway regarding customs.
"You're guilty,  prove to them you're innocent"


----------



## FJAG (5 May 2019)

Brihard said:
			
		

> 1. They do ‘follow the Charter’ (or more properly are constrained by it). Any discussion of Charter applications must bear in mind S.1, the ‘reasonable limitations’ Claude.
> 
> 2. The Customs Act allows for examination of all goods coming into Canada and requires that anyone bringing goods into the country submit them to inspection. This includes digital devices.
> 
> ...



The issue is not an application of the S1 reasonable limitations provision. The Charter applies fully at the border and when a border agent develops reasonable and probable grounds that an offence has been committed, all appropriate Charter warnings and rights apply.

The situation prior to establishing reasonable and probable grounds , however, is quite different. At that time the agent is not dealing with an offence but the obligation to control access through our border and conducts screenings under the provisions of the Customs Act. The courts have held for some time now that the law respecting a reasonable expectation of privacy varies with the circumstances and that individuals crossing the border have a low (perhaps even zero) expectation of privacy. Accordingly, inspections, authorized by law in circumstances where there is little expectation of privacy are therefore not "unreasonable search and seizure" within the meaning of s 8 of the Charter. Again, once an agent forms reasonable and probable grounds that an offence has been committed s 8 kicks in.

Here's a pdf download of a somewhat dated article (2016) on searching electronic devices. The part about border searches starts at p. 297. Note that this area of the law is a developing one.

https://ojs.library.dal.ca/CJLT/article/download/8482/7288

 :cheers:


----------



## Jarnhamar (5 May 2019)

Bruce Monkhouse said:
			
		

> Never forgot what was said to us in 1982 coming back from an exercise in Norway regarding customs.
> "You're guilty,  prove to them you're innocent"


So, like the army


----------



## Haggis (5 May 2019)

Jarnhamar said:
			
		

> So, like the army



Maybe that's why the CBSA is actively recruiting CAF veterans and serving Reservists.


----------

