Bi-Weekly Briefing- October 17-November 3, 2020

Alberta Court of Appeal rules unlimited searches of personal electronic devices at border unconstitutional

The Alberta Court of Appeal ruled in R v Canfield that the Canada Border Services Agency, in searching through the electronic devices of two men at Edmonton International Airport, infringed their rights under s 8 of the Charter of Rights and Freedoms. Section 8 states, “Everyone has the right to be secure against unreasonable search or seizure.” This case has important implications for CBSA’s search powers under the federal Customs Act.

The two men were charged with child pornography offences for possessing photographs and videos retrieved after their cell phone and the other’s laptop computer were searched by CBSA. They were arriving at the Edmonton airport on separate international flights. CBSA officers conducted the searches under s 99(1)(a) of the Customs Act. The provision permits the routine examination of any “goods” entering Canada. The Alberta Court of Appeal concluded that s 99(1)(a) is unconstitutional to the extent that it imposes no limits on the searches of such devices at the border, and is not saved by s 1 of the Charter. The Court declared at para 7 that “the definition of ‘goods’ in s 2 of the Customs Act is of no force or effect insofar as the definition includes the contents of personal electronic devices for the purpose of s 99(1)(a).” This declaration of invalidity was suspended for one year to provide Parliament with the opportunity to determine how to address searches of personal electronic devices at the border.

In reaching this conclusion, the Court of Appeal determined that the Supreme Court of Canada’s decision in R v Simmons, a leading authority on border searches, ought to be reconsidered. Simmons established that the degree of personal privacy reasonably expected when entering Canada is lower than in most other situations. A straightforward application of this principle led the trial judge in Canfield to find the searches did not infringe their right to be secure from unreasonable search or seizure. However, applying Canada (AG) v Bedford, the appeal judges found at para 6 that a binding precedent, such as Simmons, “may be revisited if new legal issues are raised as a consequence of significant developments in the law, or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate.” Significant changes in the technology of personal electronic devices, and the law relating to searches of these devices, represent such a change. Simmons was decided in 1988 when very few people had personal electronic devices. As well, courts are increasingly finding that individuals have a reasonable expectation of privacy in the contents of personal electric devices. The trial judge erred in failing to apply Simmons in light of these technological and legal changes.

The Court of Appeal nevertheless determined that the seized evidence should not be excluded under s 24(2) of the Charter and dismissed the appeals.

Commenting for Canadian Lawyer Magazine, lawyer Kent Teskey notes that this section of the Customs Act has also become relevant in the extradition of Huawei executive Meng Wanzhou. A CBSA officer had seized her electronic devices during a customs and immigration exam. She was subsequently arrested by the RCMP.  

Ongoing tensions between protection of intelligence sources and securing prosecutions, indicates Public Safety and CSIS briefing note

A briefing note obtained by CBC News and prepared for a meeting between the Department of Public Safety and CSIS outlines issues the spy agency faces sharing information that may be used as evidence in an open court. The CSIS briefing note alludes to some options for legislative reform which may seek to expedite the Federal Court process, although these recommendations were redacted. In general, reforms would likely not be extensive. Operationally, the CSIS Act may need to be modernized to account for how technology has changed the threat environment. A 2018 Federal Court decision addressed issues of technological advancement under s 16 of the CSIS Act. Certain reforms may also include a greater advisory role for Public Safety and more frequent reviews of national security legislation.

The briefing note addresses concerns over intelligence being made public. The details of CSIS’s intelligence gathering, including the location of its spies and surveillance techniques, are often highly sensitive. For the Department of Justice, however, CSIS’s intelligence can play a key role in investigations leading to criminal prosecutions. When this happens, Crown disclosure obligations can require that the intelligence be turned over to the defence, with the further prospect of it being tendered and tested in open court.

CSIS’s intelligence often plays a broader national security role than any one court case represents. The spy agency is also involved in large networks of information sharing and Canada, as Michael Nesbitt says, is a “net importer of intelligence.” Court disclosure could also put allied sources at risk. Agencies also may share intelligence on the basis that the intelligence will not be disclosed without the originating agency’s consent.

As Leah West observes, “it shouldn’t be this stark of an issue where in order to actually uphold our criminal laws for some of the most grave criminal offences, our security agencies are having to think long and hard about whether it’s worth it.” At present, if a criminal case involves classified intelligence, there is a separate proceeding in the Federal Court to determine whether, under the Canada Evidence Act, the intelligence should be protected from disclosure. However, the Federal Court does not deal with the criminal case per se.  

Trump officially exempts Canada from aluminum exports tariffs, claims no longer a threat to national security

US President Donald Trump has signed a proclamation that officially exempts Canadian aluminum exports from tariffs under section 232 of the Trade Expansion Act. The US has provided Canada with tariff-free treatment since September 1, 2020. Calum Elliot covered this for Intrepid here.

The US first imposed tariffs in June 2018 amid negotiations on the new NAFTA deal. A joint statement by Canada and the US in May 2019 declared that the tariffs were withdrawn. However, the US again imposed tariffs in August 2020 after an uptick in aluminum exports which, Canada argues, was the result of retooling product lines after a demand dropped during the pandemic. President Trump’s proclamation goes on to state the predicted levels of imports on aluminum from Canada for the remainder of the year. The US could reimpose tariffs if Canada exceeds these estimates.

Pattern of court-ordered warrants in Cameron Ortis investigation begins to reveal scope of investigation   

A list of 27 warrants and authorizations tied to the RCMP’s search for a leak within the police service, and resulting in the 2019 arrest of intelligence official Cameron Ortis, has been disclosed to The Fifth Estate. Ortis is accused of violating the Security of Information Act, as well as a breach of trust and a computer-related offence. He is charged with allegedly sharing secrets and planning to provide classified information to an unspecified foreign entity.

On June 5, 2018, 15 months before Ortis’s arrest, the RCMP first obtained a general warrant. This may have allowed the RCMP to use certain tactics such as covert entry and monitoring through surveillance devices. Following this, the RCMP successfully applied for almost two-dozen warrants and authorizations. The information submitted to the Ontario and British Columbia courts has been sealed. While the list of warrants and authorizations brings some clarity to the breadth of the investigation, the precise tactics actually employed can only be speculated based on the relevant Criminal Code provisions.

Certain warrants, such as the one granted on September 10, 2019 (two days before Ortis’s arrest) may have given the RCMP the ability to use sophisticated data tracking. The RCMP received a “transmission data recorder” warrant. Under s 492.2 of the Criminal Code, this “authorizes the peace officer or public officer, or a person acting under their direction, to install, activate, use, maintain, monitor and remove the transmission data recorder, including covertly.” An “authorization to intercept communications” warrant pursuant to s 184.2 may have allowed the RCMP to record oral and text communications.

 

Jake Norris