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Keywords

Charter of Rights, Canada, law, search and seizure, search, seizure, proportionality, section 1, section 8, reasonableness, Dworkin, jurisprudence, Fearon, Cromwell, Supreme Court of Canada, Supreme Court, criminal law, constitutional law, cell phone, mobile phone, electronic device, personal information

Abstract

Assessing reasonableness under section 8 of the Canadian Charter of Rights and Freedoms inherently calls upon courts to balance the interests of the state with those of the individual. However, existing common law jurisprudence governing the reasonableness of searching the contents of Canadians’ personal electronic devices does not strike an appropriate balance between the individual’s reasonable expectation of privacy and the state’s interest in intruding upon that expectation to pursue the objectives of law enforcement. Most notably, the Supreme Court of Canada’s majority judgment in R v Fearon does not sit comfortably alongside fundamental aspects of the legal record, contrary to legal philosopher Ronald Dworkin’s theory of law as integrity. This suggests that a better constructive interpretation of the law is needed in order to determine the reasonableness of computer searches at customs, for instance by referring to how reasonableness is assessed in other constitutional contexts. Courts ought to apply a more robust proportionality analysis, like that developed under section 1 of the Charter, in order to demonstrate integrity and to make the law on search and seizure of electronic devices “the best that it can be.”

This paper seeks to address the reasonableness and, by extension, the justness of searching the contents of electronic devices in a variety of contexts. It does this not from a normative, privacy-or-die mentality, but by starting with a proposition first advanced by Dworkin: that in the absence of complete agreement as to the justice or morality of adopting a particular interpretation of the law, judges can, do, and should demonstrate their commitment to act morally by acting with integrity — that is, by striving for coherence in their decision-making. Coherence does not guarantee that judges are, in fact, acting justly. However, when courts act incoherently, it suggests that they will only act morally by happenstance. Coherence is thus to be preferred.

The relative incoherence in the way that Canada currently treats the search and seizure of electronic devices cannot be fully justified on the basis of the different contexts in which they occur, necessitating this quest for a better constructive interpretation of the law on search and seizure. Firstly, the paper begins by situating the issue of search and seizure of electronic devices by the state in its current social and legal context. Secondly, I use Dworkin’s interpretive theory of adjudication in order to frame a critique of the search incident to arrest doctrine as it has been applied to electronic devices, specifically cell phones.

Thirdly, after establishing that the Supreme Court of Canada’s approach to electronic devices in the search incident to arrest context fails to provide the best constructive interpretation of the law as a whole, I consider how this lesson can and should inform the law’s development in the border context. This analysis draws from the Supreme Court of Canada’s jurisprudence on the “reasonable limits” clause at section 1 of the Canadian Charter of Rights and Freedoms, as well as the Court’s more recent application of a “robust” reasonableness standard in discretionary administrative decisions that engage Charter protections. Lastly, I offer proportionality theory as a potential lodestar for assessing the reasonableness of a law that authorizes computer searches by customs officials without any reasonable grounds.