Canada: R. V. Canfield: Customs Act Provision Struck Down On Charter Grounds

In R. v. Canfield, 2020 ABCA 383, the Alberta Court of Appeal considered the constitutionality of paragraph 99(1)(a) of the Customs Act (Canada) (the "Act"). Mr. Canfield and Mr. Townsend, who are both Canadian citizens, arrived at the Edmonton International Airport from outside of Canada. After questioning, the Canada Border Services Agency (the "CBSA") performed a search of their respective electronic devices, which revealed photographs and videos containing child pornography. Mr. Canfield and Mr. Townsend were arrested.

At trial, Mr. Canfield and Mr. Townsend were convicted of possession of child pornography. On appeal, counsel for Mr. Canfield and Mr. Townsend argued, among other things, that paragraph 99(1)(a) of the Act was unconstitutional, as it permitted unlimited searches of electronic devices at the border. Under paragraph 99(1)(a) of the Act, CBSA officers are permitted to examine goods that have been brought into Canada. Based on a Supreme Court of Canada case from 1988, this provision has been interpreted to allow CBSA officers to search personal electronic devices without restriction.

Based on the fact that there have been significant developments in the law respecting electronic devices over the past 30 years, the Alberta Court of Appeal revisited the issue. Ultimately, the Court found that paragraph 99(1)(a) of the Act was unconstitutional to the extent that it imposed no limits on the searches of electronic devices at the border. The Court held that the validity of paragraph 99(1)(a) would be of no force and effect for a period of one year insofar as it allowed for the unrestricted search of electronic devices. This one-year period was provided to allow Parliament the opportunity to amend the Act.

Note: The convictions of Mr. Canfield and Mr. Townsend were nonetheless upheld based on the Court's finding that society's confidence in the justice system was best maintained through the admission of the evidence obtained through the unconstitutional searches.

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