PROTECTING THE RIGHT TO PRIVACY IN DIGITAL DEVICES: REASONABLE SEARCH ON ARREST AND AT THE BORDER.

• Author: Diab, Robert
• Position: Canada - Forum: Rights in Times of Challenge

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.

Introduction

Canadians place a high value on their digital privacy and are concerned about its protection. (1) The Supreme Court of Canada, in a series of decisions from Morelli (2) to Marakah, (3) has agreed. As Justice Fish wrote in Morelli, "[i]t is difficult to imagine a search more intrusive, extensive, or invasive of one's privacy than the search and seizure of a personal computer." (4) Writing for the dissent in R v Fearon, (5) Justice Karakatsanis held that

[a] modern digital device is a portal to vast stores of information that are not truly on the device, and digital information has the potential to be more intensely and extensively personal than what might be found in a briefcase. Particularly for the "digital generation", these devices contain far more information, and information far more personal, than does a private home. (6) The Court's computer cases contain many similar passages. (7) The higher privacy interest in personal data generally calls for a higher standard when assessing what constitutes a reasonable search under section 8 of the Charter. (8)

Two areas where an appropriate standard is lacking are search incident to arrest and search at the border. (9) The government has sought to defend the state's immediate need to access device data on arrest and at the border to advance pressing law enforcement objectives--but the claim is not supported by evidence and is contrary to common sense. This paper builds upon earlier critical views of device search law and policy (canvased below) 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 of this paper revisits the Supreme Court of Canada's decision in R v Fearon, (10) which allows police to search a device incident to arrest without a warrant. It argues that the majority failed to set out a sufficiently clear and effective rule to guide police to avoid unreasonable searches before they occur. It also argues that the majority's dismissal of the approach of the United States Supreme Court in Riley v California (11) (requiring a warrant) was premised on speculative and unsubstantiated assumptions about the threat posed by device data and the value of immediate access to it. Case law is cited in support of the dissent's concerns about the "overly complicated" (12) nature of the majority's rule, and the potential for serious privacy invasions where the rule is misapplied. This part concludes by considering the dissent's view that the exclusion of evidence would not be an adequate remedy for a serious breach in this context. A brief survey of remedies, or avenues of redress, including Charter and tort damages, and complaints to police or privacy oversight bodies, supports this view.

Part II of the paper examines the constitutional validity of device searches at the border, which are presently carried out without a warrant and without grounds. It looks first at law under which groundless searches at the border have been held reasonable under section 8 of the Charter. It then considers provisions of the Customs Act (13) on which the Canada Border Services Agency claims authority to carry out device searches without grounds, and proposals for reform, including a report tabled in late 2017 by a Parliamentary committee recommending the standard of reasonable suspicion. (14) The paper concludes by arguing that a reasonable search under section 8 in this context requires a warrant, except in exigent circumstances, on the basis of a lower state interest in the search of a device at the border than in the search of a person.

Part I: Search of devices upon arrest

Police have long possessed the authority to carry out a search incident to arrest. (15) Whether and if this should extend to the search of devices on arrest draws on two earlier threads in the Supreme Court's jurisprudence: the privacy interest in computers and the test for assessing whether a search power is reasonable in relation to the Charter. I look briefly at these two points before proceeding to Fearon.

In Hunter v Southam, (16) the Supreme Court held that the purpose of the guarantee against "unreasonable search" in section 8 of the Charter is to protect a person's reasonable expectation of privacy. (17) A reasonable search is one in which a person's privacy interest is reasonably outweighed by the state's interest in law enforcement. (18) In the ordinary course, this occurs where police obtain a warrant issued on probable grounds. (19) A warrantless search would be prima facie unreasonable, the Court in Hunter held, but the Crown could rebut the presumption. (20) The Court recognized that in some situations either the individual or state interest might be higher or lower, calling for a different standard than a warrant on probable grounds. (21) The Supreme Court in Collins broadened this analysis by holding that a search will be reasonable under section 8 if it is authorized by law, if the law itself is reasonable, and if the search is carried out in a reasonable manner. (22) The question in the case of a new search power is whether the law that authorizes it is reasonable under the balancing of interests noted in Hunter.

In Cloutier v Langlois, (23) the Supreme Court recognized the validity of an ancillary police power upon arrest to carry out a brief pat down search or a search of a person's possessions or immediate surroundings without a warrant or additional grounds. (24) The power is confined within limits. A search on arrest must be connected to a criminal justice purpose related to the reason for the arrest, including safety, preventing escape, or gathering evidence. (25) The power does not authorize police to search spaces beyond the immediate vicinity of the arrest (26) or to take bodily samples. (27) The Court in Golden held that given the inherently invasive nature of strip searches, police need additional reasonable grounds to carry them out upon arrest. (28)

As cellphones became pervasive, courts grappled with whether search incident to arrest could extend to digital devices. Courts had been divided on the issue, due in part to a disagreement as to whether phones or computers are comparable to briefcases or other physical receptacles. (29) By the time Fearon had reached the Supreme Court, the Court had settled this more fundamental question in R v Vu. (30)

Vu dealt with the issue of whether a warrant to search a place in which a computer was found allowed police to search data on the computer. Justice Cromwell, writing for a unanimous Court, held that a separate warrant is required because "[t]he privacy interests implicated by computer searches are markedly different from those at stake in searches of receptacles such as cupboards and filing cabinets." (31) In arriving at this conclusion, Justice Cromwell declined to accept a series of propositions that would become central to the majority's reasoning in Fearon. The Crown had argued that after-the-fact review of the reasonableness of a computer search was adequate protection of privacy in these cases. (32) The Crown also asserted that "computer searches are not all alike and different principles of search and seizure may be engaged depending on the circumstances in which the authorities encounter a computer. (33) It also contended that "requiring specific authority to search computers would restrict access to valuable information and undermine legitimate investigations." (34) Justice Cromwell dismissed all three arguments in light of the emphasis he placed on the privacy interests at stake in a computer.

The Vu decision featured an extended section--a short essay--on why computers are special and distinct, marking the culmination of such pronouncements from Morelli onward. (35) Beginning with the assertion that "[i]t is difficult to imagine a more intrusive invasion of privacy than the search of a personal or home computer," (36) Justice Cromwell set out four distinguishing characteristics. Computers store "immense amounts of information" of an incomparable "scale and variety", engaging the "biographical core of personal information" referred to in R v Plant. (37) Computers contain...