Canada Border Services Agency Routinely Requests Passwords from Travelers/Returning Residents and Examines Electronic Devices

Source: Canada US
Link: Canada Border Services Agency Routinely Requests Passwords from Travelers/Returning Residents and Examines Electronic Devices

The Canada Border Services Agency (“CBSA”) is granted the power to examine goods imported by travelers and returning residents.  Section 99 of the Customs Act gives CBSA officers the power to examine your suitcase, your purse, your backpack, your briefcase and your electronic devices. The word “goods” is defined in subsection 2(1) of the Customs Act to include “…any document in any form”.

This means that the CBSA officers may examine electronic devices (including computers, smart phones, USB keys, iPads, etc.), and may look at any electronic document including emails and attachments, photographs, contacts, text messages, recorded phone messages, Facebook messenger, Twitter direct messages, What’s App, saved documents (including tax returns, bank statements, credit card statements, health records, etc.  Basically, any electronic document that you have stored on your electronic device may be examined.  Your hard drive can be copied and sent to a CBSA lab for a more in depth examination.

CBSA Offices routinely examine electronic devices.  The officer either asks (1) for the traveler/returning resident to provide the password for the electronic device or (2) the traveler/returning resident to enter their password so that the electronic device can be examined.

In August/September 2017, the CBSA started tracking CBSA officers’ examinations of electronic devices.  If a CBSA officer examines an electronic device, they are required to complete a form.  This does not always happen.  In fact, in many cases that we have seen where a CBSA officer examines and electronic device, such as a mobile phone or a laptop computer, the CBSA officer does not complete the proper paperwork and does not seek supervisor permission before examining the electronic device.  In fact, the CBSA officer does not inform the traveler/returning resident of the CBSA procedures.

The CBSA has said that between November 2017 and March 2019, 19515 travelers had their electronic devices examined.  This figure was reported by a number of media sources, but we have not been able to verify its accuracy. If the statistics are based upon the CBSA officer reports, the numbers are under-stated significantly.

We are often asked why would a CBSA officer examine a person’s electronic device.  The most common reasons are:

1. determine whether a visitor to Canada is coming to Canada to work;
2. determine whether the returning resident has purchased or acquired goods outside Canada (e.g., the CBSA is looking for recent receipts emailed to the person);
3. determine the value of an item (e.g., a car, a ski-doo, a puppy) purchased from a private seller (the CBSA looks for the emails or text messages relating to the transaction);
4. determine if the visitor is engaged in criminality and, therefore, is not admissible to Canada; and
5. determine whether the person has prohibited materials on their electronic device (e.g., child pornography, obscene materials or hate literature).

There are cases where the CBSA examines electronic devices without any reason to believe that the traveler/returning resident has done anything wrong.  The CBSA is looking for a way to justify the lengthy examination of the traveler.  We have seen many cases where the CBSA would not have “reasonable cause” to examine a person’s electronic devices.

For example, the CBSA examined the electronic devices of a truck driver returning to Canada. In this case they seized the truck driver’s mobile phone after going into What’s App and downloading links for various videos that friends had sent.  The CBSA took the position that a video that was widely available online was beastiality.  The CBSA took an enforcement action against the truck driver and cancelled his trusted traveler card.  We should note that we were successful in overturning the enforcement action and the truck driver was able to get his trusted traveler membership reactivated.

The CBSA also examined the electronic devices of an artist who was returning to Canada after a holiday outside Canada.  The CBSA officer had already examined the returning resident’s luggage and no narcotics were located.  The CBSA demanded the artist’s password to examine his electronic device even though the device passed an ion scan and could not possibly have contained illegal narcotics.  The CBSA officer wanted to review the photographs for evidence of drug-related activities (emails, tests, photos, etc.).  The examination was non-resultant.

The CBSA examined the electronic device of a person importing a puppy in order to determine if the invoice provided by the breeder to the new fur-parents was a false invoice.  The CBSA wanted to see the negotiation history for the puppy and whether there was another invoice emailed to the returning residents.

The CBSA asked to examine the electronic devices of a Toronto lawyer, Nick Wright.  This case has been widely reported in the media.  It is not known what the CBSA wanted to look for on Mr. Wright’s mobile devices, but he was returning to Canada from Colombia.  Mr. Wright would not provide his passwords and the CBSA confiscated his laptop computer and mobile phone in order to send the devices to the CBSA lab to crack the passwords.

The case of Mr. Wright is interesting because he was a returning resident and would have been admissible to Canada.  the CBSA could not deny Mr. Wright entry to Canada.  The CBSA would have to be looking for a customs infraction.  However, there is no suggestion in the media reports that any goods were seized for being unreported or undervalued.

The CBSA does not have the authority in the Customs Act to examine an individual’s electronic device to gather evidence for proceedings unrelated to the importation on the day in question.  For example, the CBSA cannot look for documents relating to activities that would be illegal under the Criminal Code.  The CBSA cannot examine the electronic device of a lawyer to look for documents of a client who the CBSA believes has provided false documents to the CBSA.  The CBSA cannot search electronic devices for the police in order to get around the legal requirements to obtain a warrant.

If a person does not provide a password to an electronic device in the possession of the visitor/returning resident at the time of entry into Canada, the CBSA has four options:

1. charge the person under Section 153 of the Customs Act with obstructing an officer;
2. seizing the electronic device and sending the device to a lab to crack the code; or
3. seize the goods and guestimate a value for the purposes of the enforcement action and payment of duties and taxes;
4. deny a visitor entry to Canada.

The reality is that the CBSA has the authority to protect Canada’s borders.  The CBSA has the authority to examine the goods a person brings into Canada.  The CBSA should be held to account when they escalate an examination to electronic devices.  The CBSA is required to complete paperwork for each and every examination of an electronic device and the officer must write the reason or justification for the examination.  Unfortunately, this is not always done.

If you would like more information, please do not hesitate to contact Cyndee Todgham Cherniak at 416-307-4168 or at cyndee@lexsage.com.  We have posted other articles about electronic devices searches and appeals of CBSA enforcement actions and NEXUS appeals on the LexSage website.