BILL S-7 has been introduced by a Senator. It deals primarily with the searches of smart phones and other personal electronic devices, or PED’s.
In today’s society the average smart phone contained hundreds if not thousands of megabites of data ranging from personal family photos, to credit card info and purchases, travel receipts, business purchases, home purchases, private messages between family members and friends etc.
In regards to a lawyer’s smart phone, it also contains privileged information as to their clients legal matters.
The problem is not so much with allowing a search but under what circumstances is that search to be based on. The Bill S-7 contemplates a very low threshold called: “reasonable general concern”. Based on a review of recent Supreme Court of Canada decisions, the more proper standard ought to be “reasonable grounds” search or search based on “reasonable suspicion” as per cases such as Canfield by the Alberta Court of Appeal in October, 2020 and the SCC decision in Fearon- 2014 and Chehil 2013. The court has been indicating in their decisions of late that the biographical core of information that exists in PED’s necessitates a more reasonable standard before a search is allowed to proceed with such technological devices as an incident of arrest.
The government has to understand that to allow a change in the Customs Act and Preclearance Act that will in effect provide huge amount of power and discretion to border agents, known as BSO’s, to search one’s PED is simply not going to withstand a Charter challenge. It is best to consider the matter carefully and get it right the first time, rather than unnecessarily detaining people without reason and justification.
This new bill can be a game changer and it is critical that we speak out about our position on this matter before the law is finalized.
