While the U.S. Border Control`s search power may seem draconian to Canadians, it should be noted that in Canada under the Customs Act, a Border Services officer does not need to have individualized suspicion to search your luggage or other possessions.
In fact, the Supreme Court of Canada decided in a case that the degree of personal privacy reasonably expected at border crossings is lower than in most other situations, and that people expect to be subjected to questions and inspections at border crossings because of the state’s compelling interest in protecting its borders by preventing the entry of undesirable persons and prohibited goods, and in protecting tariff revenue. (1)
Because of Canada`s interest in protecting its borders, border guards are allowed to search you at a border crossings in a situation that wouldn’t be enough to give a police officer grounds to search you anywhere in Canada. The standard of reasonable grounds is lowered at border crossings, because there are compelling reasons to allow border guards more abilities to search people without having to show reasonable and probable grounds.
The Supreme Court has also said in a case that the Customs Act allows a customs officer to search not only on the surface of the traveller’s body for prohibited material, but also secreted or concealed within the traveller’s body. This permits “bedpan vigils” or other embarrassing methods of searching the inside of people for drugs or other contraband.
This is because the judges of the Supreme Court decided that subjecting travellers crossing the Canadian border to potential embarrassment is the price to be paid in order to achieve the necessary balance between an individual’s privacy interest and state interest in protecting the integrity of Canada’s borders from the flow of contraband materials.
Your Rights to Counsel at a Border Crossing
You have a right to a lawyer when you are “detained” by a law enforcement officer, either a police or customs officer. This is your “right to counsel” under s. 10 of the Canadian Charter of Rights and Freedoms.
You do not have a right to counsel until you have been “detained” which means, essentially, that the police or other law enforcement official has prevented you from leaving and you reasonably believe that you have no choice but to do as instructed by the officer. (2)
The Supreme Court of Canada has said that routine questioning or luggage searching by a customs official at a border crossing is not a “detention”, but if you are taken aside and required to submit to extensive searching and you cannot leave, you have been detained, and your right to counsel is triggered. (3)
This means that you have the right to remain silent and the right to ask for a lawyer. The customs officer will not volunteer to get you a lawyer, it is up to you to use your right by asking to speak to a lawyer. If you ask for a lawyer the customs official should give you an opportunity to use a phone to call a lawyer. You have a right to use a telephone, and to make as many phone calls as necessary for you to actually talk to a lawyer. You are not limited to one phone call.
If you are detained by a customs official in order to be personally searched, you have the right to request to be taken before the senior officer on duty for him or her to confirm whether there are reasonable grounds for the search. The senior officer has the authority to decide whether there are reasonable grounds for the search or whether you should be discharged. (4)
A search of your body must be done by a person who is the same sex as you.
Although Canada Border Services does not have a written policy with respect to searches of laptops and other computers, these kinds of searches are allowed. Recently, in several court cases in Ontario, judges decided that a non-destructive search of a computer by turning it on and tapping on a few keys or using the device’s own search functions to locate and inspect photo or video files is a routine border search and is no different from a routine search of luggage. (5)
The law says that physical searches of luggage, computers and of the person’s body are aspects of the search process that people should expect, especially where there are grounds for suspecting that a person has made a false declaration and is transporting prohibited goods. Border guards are not required to have reasonable and probable grounds and can search you and your possessions just because they suspect you might be lying.
What Should You Do to Protect the Security of Your Information?
Therefore, when you are crossing the border, your electronic devices can be turned on by border control officers and the contents searched. You can also be subject to invasive searches of the body if the officer has a reasonable suspicion that you have swallowed illegal narcotics or other contraband.
Many organizations in Canada now advise their staff not to carry any information on electronic devices they may take across the border, and where possible, to simply connect with their offices remotely. If it is not possible for you to take a clean device across the border, be aware that any information stored on your device will be accessible to a variety of agencies of the U.S. government if the device is seized. Take the minimum information necessary and leave the rest at home.
(2) Detention may be effected without the application or threat of application of physical restraint if the person concerned submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist: R. v. Therens, 1985 CanLII 29 (S.C.C.), 1985 CanLII 29 (S.C.C.), 1985 CanLII 29 (S.C.C.),  1 S.C.R. 613; R. v. Rahn, 1985 CanLII 31 (S.C.C.), 1985 CanLII 31 (S.C.C.), 1985 CanLII 31 (S.C.C.),  1 S.C.R. 659; R. v. Trask, 1985 CanLII 30 (S.C.C.), 1985 CanLII 30 (S.C.C.), 1985 CanLII 30 (S.C.C.),  1 S.C.R. 655.
(3) Simmons v. R., 1988 CanLII 12 (S.C.C.) , 1988 CanLII 12 (S.C.C.), 1988 CanLII 12 (S.C.C.) ,  2 S.C.R. 495; Jacoy v. R., 1988 CanLII 13 (S.C.C.) , 1988 CanLII 13 (S.C.C.), 1988 CanLII 13 (S.CC.) ,  2 S.C.R. 548.