This Div is a JS Trigger
Issue 67 | January 2021

LIANSWERS

This newsletter includes information to help lawyers reduce the likelihood of being sued for malpractice. The material presented is not intended to establish, report, or create the standard of care for lawyers. The articles do not represent a complete analysis of the topics presented, and readers should conduct their own appropriate legal research.
'Custom' Made: International Travel and Electronic Privacy

In prior issues, we mentioned the potential perils when returning to Canada after travelling internationally with your work phone and computer, in particular the ability of border agents to examine those devices without reasonable and probable grounds of an issue.

In R v Canfield, 2020 ABCA 383, a recent decision of the Alberta Court of Appeal, the court concluded that groundless searches of personal electronic devices conducted pursuant to paragraph 99(1)(a) of the Customs Act infringed on Section 8 of the Charter and further that the infringement could not be saved under Section 1. Accordingly, the search power under S. 99 (1)(a) of the Customs Act was deemed unconstitutional. But there are two caveats in the decision. The first is that only routine searches of personal electronic devices at the border were deemed unconstitutional. If the agent has reasonable and probable grounds of an issue the search is permitted. The second caveat is that the Court suspended its declaration of invalidity of the legislation for one year to provide Parliament the opportunity to amend the legislation should it wish to do so.

It should also be added that the appellants have sought leave to appeal as their convictions were upheld.