Ruling disrupts current border practices across Canada
The Ontario Court of Appeal has declared a section of Canada’s Customs Act unconstitutional, potentially altering how digital devices are searched at Canadian borders. However, the ruling does not automatically acquit those charged with serious offences uncovered during such searches.
The decision arose from the cases of two travellers, Jeremy Pike and David Scott, whose devices were searched at the border under subs. 99(1)(a) of the Customs Act. Both men were charged with possessing and importing child pornography. They challenged the constitutionality of the law, arguing that it infringed on their Charter rights against unreasonable searches. The court sided with the travellers on the constitutional issue, but with differing outcomes for the two men.
In R. v. Pike, 2024 ONCA 608, the Ontario Court of Appeal issued a decision that acknowledged that millions of Canadians travel internationally with personal digital devices containing vast amounts of private information. This raises strong privacy concerns as the court emphasized that digital devices are a "window into [users'] lifestyles, beliefs, interests, desires, relationships, finances, health, and much more."
However, the court found that subs. 99(1)(a) of the Customs Act allows border officers to search these devices based on a subjective belief that they are enforcing border laws, without needing objective facts or reasonable suspicion. This, the court ruled, falls short of the protections guaranteed by s. 8 of the Charter, which guards against unreasonable searches and seizures.
“While sincerity is a good start, it is just not enough. Our Charter requires more because Canada’s border control interests temper but do not eliminate or gut its protections," the justice said, adding that a "reasonable suspicion" threshold is necessary to balance privacy rights with border security interests.
Despite finding the law unconstitutional, the court ruled that this does not automatically entitle Jeremy Pike and David Scott to acquittals. The court allowed the Crown's appeal against Pike's acquittal and ordered a new trial, arguing that the trial judge had incorrectly excluded evidence of child pornography found on Pike's devices. The court found that the trial judge did not adequately consider the good faith of the border officer who conducted the search and the reduced expectation of privacy at the border.
Regarding Scott, the court upheld his conviction, finding that the evidence against him was admissible because the border officers reasonably relied on the law's validity at the time. However, the court did find fault with the trial judge's sentencing decision.
The judge had imposed a 23-month conditional sentence of house arrest for Scott's possession of child pornography. The Crown sought a harsher penalty, arguing that Scott's crimes had a lasting and widespread societal impact.
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The Court of Appeal agreed with the Crown's assessment, stating that Scott's offences were failed to adequately address the gravity of the harm caused as he had possessed recordings of the sexual abuse and exploitation of children over three decades.
Despite these findings, the court declined to increase Scott's sentence, reasoning that he had already served more than half of his house arrest term. The court stated that if Scott had received a three-year prison sentence, he likely would have been eligible for parole by now.
