A great deal of consternation and confusion recently arose thanks to the language in a new piece of legislation introduced in the Senate on 29 March 2022.
Indeed, the Customs Act does not mention the word “digital”, and neither Bill S-7 nor the Customs Act defines “personal digital device”.
The new law will allow Canada Border Services Agency (CBSA) border guards to “examine documents, including emails, text messages, receipts, photographs or videos, that are stored on a personal digital device that has been imported or is about to be exported and is in the custody or possession of a person if the officer has a reasonable general concern that:
(a) this Act or a regulation made under it has been or might be contravened in respect of one or more of the documents;
(b) any other Act of Parliament that prohibits, controls or regulates the importation or exportation of goods and is administered or enforced by the officer or any regulation made under that Act has been or might be contravened in respect of one or more of the documents; or
(c) one or more of the documents may afford evidence in respect of a contravention under
(i) this Act or a regulation made under it, or
(ii) any other Act of Parliament that prohibits, controls or regulates the importation or exportation of goods and is administered or enforced by the officer or any regulation made under that Act.
What is meant by a “reasonable general concern” is anyone’s guess. The term is undefined and unknown. Indeed, a search of the entire Canada.ca website for that term results in only two entries: Bill S-7 and the CBSA notice that it is “developing regulations to prescribe legally-binding controls on the examination of documents stored on personal digital devices (PDD).”
Bill S-7 also allows for the seizure of devices, and for making “an electronic copy of a record or document if it is impossible or impractical to seize anything on which the record or document is stored or if seizing the thing is likely to degrade the record or document or make it unusable as evidence.” Seizing and examining the ‘conveyance’ — “vehicle, aircraft or water-borne craft or any other contrivance that is used to move persons or goods” — is a provision that has long been part of the Customs Act.
Allowing examination of the entire contents of a cellphone, laptop, or tablet because the border guard has a “reasonable general concern” is vague and subject to interpretation by the officer.
Anyone who “hinders” an officer in the commission of their duties is punishable on summary conviction and is liable to a fine of up to $10,000 or imprisonment for up to six months, or both; or is guilty of an indictable offence and liable to a fine of up to $50,000 or to prison for up to five years, or to both.
153.1 No person shall, physically or otherwise, do or attempt to do any of the following:
(a) interfere with or molest an officer doing anything that the officer is authorized to do under this Act; or
(b) hinder or prevent an officer from doing anything that the officer is authorized to do under this Act.
US-bound travelers should keep in mind that the law specifically grants authority to preclearance officers — the American Customs and Border Patrol agents who work at preclearance centers across Canada under authority of the Preclearance Act — with the power to “power to examine, search and detain documents… [and] to detain the personal digital device on which they are stored.”
The authority granted to Canadian and American border guards does not apply to personal digital devices that are imported or exported solely for sale; for an industrial, occupational, commercial, institutional or other similar use; or for any other prescribed use. In other words, it appears to apply only to devices in the possession of individuals — including elected representatives from all levels of government — and which are intended to be retained by them for personal use.