Introduction

Persons importing goods into Canada via mail or bringing goods into Canada via ports of entry, should be aware of the rights of Canada Border Services Agency (“CBSA”) officers to inspect and search persons and goods, and computer hard drives.

There are special rules that apply to the inspection of mail. Further, CBSA officers have broad authority to conduct searches of goods, conveyances and persons at a customs port of entry. These powers in many ways exceed the powers that domestic police authorities have to search persons, goods or conveyances in Canada. The issue of searches of computers has been raised, particularly by individuals who have a right to claim privilege in respect of documents and information contained on computers. A brief outline of the law and the policy published by CBSA is set out below.

Inspection of Mail

International mail is presented by Canada Post to CBSA. CBSA officers inspect each piece of mail to determine its admissibility into Canada and to confirm whether it contains dutiable or taxable goods. If a CBSA officer determines that a mail item is not prohibited from entering Canada and is not subject to duties or taxes, the item is released to Canada Post for immediate delivery. Prohibited goods include obscene materials, hate propaganda, dangerous materials and narcotics.

CBSA officers have the authority to examine goods pursuant to section 99 of the Customs Act. Pursuant to subsection 99(2) of the Customs Act, a CBSA officer may not open any mail items that weighs less than 30 grams or less without the consent of the addressee or sender. See CBSA Memorandum D5-1-1.

Pursuant to section 17 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, a CBSA officer may examine any mail that is imported and open or cause to be opened, any such mail that the officer suspects on reasonable grounds contains currency or monetary instruments of a value equal to $10,000. Subsection 17(2) indicates that the officer may not open or cause to be opened any mail that weighs 30 grams or less without the consent of the addressee or the sender. See CBSA Memorandum D19-14-1.

Border Searches

With respect to the ability of CBSA officers to search at the border, the law has been established in the cases of R. v. Jacoy and R. v. Simmons. In both cases, the Supreme Court of Canada indicated that the CBSA officers have a right to inspect persons or goods who enter Canada’s ports of entry. Further, it indicated that CBSA officers have broader rights of search for the reason that individuals who cross international boundaries do not have a reasonable expectation of privacy and that governments have the right to search individuals and goods in order to protect against the importation of contraband or the entry of undesirable persons. This means that the CBSA has the right to conduct a personal search of persons, their baggage and conveyances, to the extent necessary to ensure that they are not importing prohibited goods and that the importation of goods into Canada is not unlawful.

Computer Searches

It appears that, in Canada, the issue of the right to search is covered by the Jacoy and Simmons cases. The result in these cases suggests that computer searches may be undertaken by the CBSA officials to the extent necessary to ensure that a computer does not have any contraband loaded on it (e.g., obscene material, child pornography, or hate literature). See CBSA Memorandum D9-1-1. Further, a computer may be inspected for the purpose of ensuring that it does not contain any unsafe or dangerous items or that the importation of the computer is unlawful for any other reason. See CBSA Memorandum D19-13-5.

Recommendations

In circumstances where a person is carrying a computer, personal handheld device or electronic item at a port of entry and the CBSA wishes to search that device, it is recommended that:

  1. The individual carrying the item state to the CBSA officer that the item contains privileged documents and information and that the person asserts the claim of privilege in respect of the documents and information contained on the computer, personal handheld device or other electronic item.
  2. The person claiming privilege indicate to the CBSA officer that because the documents and information are privileged, that they should not be disclosed to the CBSA officer and instead turned over to a legal officer for the Department of Justice for the purposes of dealing with the claim of privilege.
  3. If the CBSA officer insists on viewing the documents and information over which the person claims privilege, that the person note the time and circumstances of the privilege claim and contact legal counsel immediately for the purposes of addressing the claim to privilege.
  4. The person claiming privilege should not refuse to provide the item to a CBSA officer if it is demanded for inspection. A refusal might be treated by the CBSA officer as an instance of noncompliance, leading to further complications with CBSA.