Returning home from a trip to Cuba, Sheldon Wells Canfield was “extremely friendly” with the border agent, talking about “women and Cuba and the sea” – something of a red flag for sex tourism for women and children.
Arriving on another flight from Seattle, Daniel Emerson Townsend stopped looking when asked about his five-month pattern of travel and unemployment.
Both men were taken for a second check-up at Edmonton International Airport. Both of their digital devices were searched and found to contain child pornography. They were later found guilty of similar offenses.
Now, the Alberta Court of Appeals has ruled that the search of the Canadian Border Services Agency’s Canfield mobile phone and Townsend laptop was unconstitutional, because the Customs Act does not restrict the search of such devices at the border.
Although the appellate court has stopped releasing images found on male devices as evidence and altering sentences, both cases have placed the Canadian border agency’s power to search such growing devices under scrutiny.
“While a computer or mobile search may not be accompanied by body samples or strip searches, it may be a matter of serious concern to personal privacy,” said a three-judge panel of appeals in the October 29 decision.
“To be clear, such searches must have limitations.”
In ruling, the trial judge failed to review the application of the law in respect of the changing electronics technology, the appellate court gave the provincial government one year to amend the law to determine how to deal with border electrical appliances.
“We all walk around with our whole lives in our pockets. The police and law enforcement should take this seriously and should not look for these devices without good reason, “Canfield’s lawyer Kent Teskey told The Star in an interview.
“Canfield’s decision really means that because you are at the border you still have the right to call a lawyer, you still have the rights to not give us a statement and things like that.”
The level of human privacy expected in culture is generally lower than most other situations, because people do not expect to cross international borders without scrutiny. It is also accepted that the sovereign states have the right to control both of them and what goes into their borders. As a result, visitors are expected to expect to be subject to a screening process.
“Now the court says there is a desire for privacy in these matters. There should be very little of this type of search (at the border) across the country, ”said Evan McIntyre, a Townsend lawyer.
Both of their clients declined to comment on the matter.
It took Canfield and Towns two years to secure this narrow victory after their separate arrest at the airport in 2014. And both cases will be considered by the Supreme Court of Canada.
During their joint hearing, the judge refused to reconsider the case, which was instituted in 1988 to complete two searches under the Customs Act, which was lawful and constitutional. Based on that, the court accepted child pornography as evidence.
In their appeal, Canfield and Townsend argued that their legal rights had been violated because the trial judge failed to consider “public change regarding the expected confidentiality of the Canadian people’s content on their telephones.”
The appellate court agreed, stating that only 22 percent of Canadian households had a mobile phone for use in 1997. As of January, it said, 96 percent of Canadians had a mobile connection and 94 percent used the Internet. Of those who use the Internet, 89 percent have a smartphone, 85 percent have a laptop or computer and 55 percent have a tablet.
The border agency told the court it relied on the Customs Act for searches and prohibited activities including child pornography, hate speech, pornography, sedition or sedition and the reprint of Canadian copyrighted works.
In his affidavit, Denis Vinette, director-general of the agency’s operations branch, testified that “the legal limit for individual allegations of digital device testing will seriously undermine CBSA’s ability to exercise its legal authority.”
As with other documents such as receipts, invoices and airline tickets, he said, “it would undermine the basic functions of CBSA if a police officer could inspect a printed receipt as usual but kept it as a PDF file on an electronic device only after meeting legal restrictions.”
Vinette also cited expert evidence in the case when it comes to sexual misconduct and the use, exploitation, collection and consequences of sexually explicit material, including child pornography, and the escalation of the problem since the advent of the Internet.
About one-third of child sexual offenders commit sexual offenses against children; those who travel abroad to abuse children are more likely to have written records of their activities and want to be smuggled across borders, the court heard.