By Craig Forcese and Leah West
The Meng extradition proceeding will clearly test one area of Canadian law: extradition law. (See here). It will also now probe another: constitutional rights at the border. Ms Meng’s lawyers filed a civil action suing officials (and especially the CBSA) for detaining Ms Meng at the border. There (plaintiffs allege) officials conducted pretextual border detention, questioning and searches (including of her electronic devices, for which she provided the passcode) in aid of US authorities, not in support of Ms Meng’s arrest for extradition purposes. The statement of claim is posted here. There have been questions about the legal niceties of this case. We offer a few quick observations.
The alleged torts
Ms Meng is suing for false imprisonment, misfeasance of public office, and Charter breaches. Each of these causes of action has distinct elements. None will be easy to establish.
False imprisonment stems from unlawful detention. Such lawsuits do arise in the wake of arrests by authorities, and the key issue then is the lawfulness of that arrest. In police arrest cases, for instance, the focus is on whether a police officer had lawful authority (for instance, reasonable and probable cause) for an arrest: Storrey.
Misfeasance of public office is a more complicated tort, resuscitated by the Supreme Court in Odhavji. Its elements were admirably summarized there:
…the tort of misfeasance in a public office is an intentional tort whose distinguishing elements are twofold: (i) deliberate unlawful conduct in the exercise of public functions; and (ii) awareness that the conduct is unlawful and likely to injure the plaintiff. Alongside deliberate unlawful conduct and the requisite knowledge, a plaintiff must also prove the other requirements common to all torts. More specifically, the plaintiff must prove that the tortious conduct was the legal cause of his or her injuries, and that the injuries suffered are compensable in tort law.
Again, the core consideration is whether authorities acting “unlawfully”.
Constitutional torts are also now available as separate causes of action, although obtaining monetary damages for these violations is not easy. Obviously, success for the plaintiff depends on proving a Charter breach. Further still, damages would have to be justified as necessary to provide compensation for the pecuniary or non-pecuniary harms suffered by the plaintiff, or to vindicate the value of the Charter or to deter Charter violations in the future: Ward.
Having filed a civil action, Ms Meng is in fact seeking damages. Damages, of course, will not provide any relief from her possible extradition or the American criminal case. For one thing, any information collected during the border search is likely irrelevant to a US criminal indictment stemming from a distant fraud done years ago in another part of the world. Even if there were some way to supress evidence acquired at the Canadian border (and then shared) in a subsequent US criminal case, the information collected is likely irrelevant.
Nor, in this extradition proceeding, is evidence collected in Canada likely to be important – the extradition proceeding is not a trial. It is largely an exercise to ensure the requesting state has some basis to seek extradition.
Ms Meng’s action is, therefore, probably an effort to raise the stakes for the Canadian government. One might call it a form of “lawfare”. Nevertheless, the issues at stake are important ones for everyone who crosses a Canadian border. This is especially true for searches of electronic devices.
The Charter Issues
The “unlawfulness” underlying the torts alleged by Meng are Charter violations. Consequently, Meng’s case is likely to turn on whether the government’s sweeping interpretation of its powers at the border remains true in an evolving Charter environment.
First point: despite handful of exceptions that are irrelevant here, Charter rights attach to all people in Canada, regardless of their nationality or immigration status.
Second point: the government takes the view that Charter rights are more attenuated at the border. And to this point, the courts have concurred.
Upon arrival in Canada, s. 11(1) of the Customs Act stipulates that everyone must present themselves to an officer without delay and answer any questions asked by the officer in the performance of his or her duties under any act of parliament truthfully. Additionally, s.99 of the Customs Act gives authorities (in practice, CBSA) substantial search authority. The government asserts that this authority applies to smartphones in the same way it applies to suitcases. CBSA guidelines explain that s. 99:
provides CBSA officers with the legislative authority to examine goods, including digital services and media, for customs purposes only. Although there is no defined threshold for grounds to examine such devices, CBSA’s current policy is that such examinations should not be conducted as a matter of routine; they may only be conducted if there is a multiplicity of indicators that evidence of contraventions may be found on the digital device or media.
Goods may also be examined under s. 99 of the Customs Act if an officer has reasonable grounds to suspect that, in relation to those goods, any act of Parliament enforced by them may have been contravened.
The Supreme Court has interpreted these provisions broadly on the basis that persons have a diminished expectation of privacy at the border. In R v Simmons, the Supreme Court considered the constitutionality of a strip search conducted by a customs officer at an airport who had reasons to suspect that the accused was secreting narcotics. It held:
People do not expect to be able to cross international borders free from scrutiny. It is commonly accepted that sovereign states have the right to control both who and what enters their boundaries. For the general welfare of the nation the state is expected to perform this role. Without the ability to establish that all persons who seek to cross its borders and their goods are legally entitled to enter the country, the state would be precluded from performing this crucially important function. Consequently, travellers seeking to cross national boundaries fully expect to be subject to a screening process.
The Supreme Court went on to find that “routine questioning,” luggage searches, and frisk and pat down searches conducted by customs officers without any individualized suspicion were not unreasonable searches under s.8 of the Charter. Furthermore, searches of the person that “are not routine” but carried out on the basis of the officer’s reasonable suspicion that a person has secreted contraband on their body were also found to be reasonable under s.8 because they were carried out in private and subject to review at the individual's request.
Lower courts have also determined that electronic devices and smartphones qualify as “goods” under the Customs Act, and searches of such devices are permitted under s. 99(1). See, e.g., R v Moroz; R. v. Canfield.
Privacy experts disagree. Many have argued that given the Supreme Court’s finding that searches of electronic devices may be highly intrusive, smartphones, computers and other devices should not be considered “goods” under the Customs Act. Testifying before a parliamentary committee, Federal Privacy Commissioner Daniel Therrien urged legislators to recognize that the “idea that electronic devices should be considered as mere goods and therefore be subject to border searches without legal grounds is clearly outdated and does not reflect the realities of modern technology.”
So who is right? Simmons is a very old case. Since then, technology has changed and the Supreme Court has demonstrated a dawning understanding of just how much data is included on our portable devices; the caselaw is now much more demanding of electronic searches within Canada. It remains to be seen whether the trend in recent search and seizures cases would colour the Supreme Court’s assessment of border searches – so far, it appears not to have influenced lower courts. Unfortunately, we have no modern appellate caselaw on the topic to guide us
Bottom line: what sort of Charter rights one has at the border is an important question for all travellers, and for once, we have a well-financed litigant who may be prepared to take this fight all the way up to the Supreme Court.