‘Mere Evidence’? Why Customs Searches of Digital Devices Violate Section 8 of the Charter
UBC Law Review, Vol. 49(1), pp. 485-519 (2016)
35 Pages Posted: 4 Feb 2017
Date Written: 2016
In the late 19th and early 20th Century, a rule emerged from interpretations of the Fourth and Fifth Amendments to the U.S. Constitution barring the taking of non-illicit property for evidentiary purposes. The “mere evidence” rule was unevenly applied, but for decades it often served to thwart governments’ attempts to search, seize, and compel self-incriminating evidence, even when they could demonstrate ample justification for doing so. By the late 20th Century, the rule was abandoned – condemned as a Lochnerian, formalist anachronism incompatible with both modern legal pragmatism and the modern regulatory and criminal justice systems.
I argue, however, that the rule should be revived to serve a specialized, contemporary purpose: the regulation of electronic border searches. In Canada, customs officials appear to have powers to seize electronic devices, search their digital contents, and demand device passwords without any degree of suspicion that they will uncover evidence of an offence. To date, courts have held that these intrusions are constitutionally justified by the state’s border security interests.
I argue, in contrast, that suspicionless digital customs searches are unreasonable under section 8 of the Charter. Because data travels freely over national borders through the internet, digital customs searches do not further legitimate border control objectives. They do, however, cause privacy intrusions that would not be tolerated outside of customs. By adopting a version of the mere evidence rule, courts can maintain the state’s capacity to control the entry of goods and persons into Canada without eviscerating the expectation of privacy that citizens have reasonably come to expect over the contents of their digital devices.
Keywords: Charter of Rights, Section 8, Search and Seizure, Digital Privacy, Customs, Comparative Law, Constitutional Law, Border Searches, Legal History, Canadian Law
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