New legal threshold for cellphone searches at border

A new legal standard is in the process of being established for the searching of digital devices of people entering Canada.

Bill S-7, a bill introduced in the Senate, will amend the Customs Act to establish "reasonable general concern" as the threshold by which agents can search people's phones.

The bill was tabled after the result of an Alberta court case which found the current legal threshold simply does not yet exist, and is therefore unconstitutional. This bill aims to make the threshold well known and understood so that agents of the government may soundly search devices if they feel there is a general concern that it is worth searching an arriving person's phone for information.

Civil liberties groups across the country are responding to the bill, saying that the legislation is too open-ended and too permissive. Physical mail for example is actually subject to a higher standard before agents of the government may search it.

On Monday, Public Safety Minister Marco Mendicino told the committee a less restrictive legal standard than “reasonable grounds to suspect” is necessary at the border. He called the new standard a “unique threshold for a unique situation.”

Mendicino told senators the new threshold only applies at the border. “This is not a power that can be used outside of the border context. It is specifically designed to address that particular set of circumstances, which the Supreme Court of Canada has previously ruled does attract a lower expectation of privacy because (the border) is a vulnerable port of entry,” he said.

He said the new threshold “does not give officers carte blanche to examine personal digital devices.”

Years of court battles are likely to ensue in the coming years, as people begin to hash out the exact limits of what "reasonable general concern" actually entails as a threshold to authorized searches of digital devices, say civil liberties groups.