Two accused charged with child pornography offences after searches of their cell phones at the airport. Defence challenged the constitutionality of s 99(1) of the Customs Act (giving border officers broad power to examine any goods) on the basis that electronic devices should not have been searched without individualized suspicion of contraband.

Held: Customs Act, s 99(1) does not violate s 8 of the Charter.

Simmons, [1988] 2 SCR 495 outlined the lowered expectation of privacy at a border, and identified three categories of border searches: (1) routine questioning, (2) strip or skin searches, and (3) body cavity searches. Cell phone searches fell under the first (routine) Simmons category and thus did not engage section 8 or require individualized suspicion. Recent Supreme Court cases surrounding privacy interests in electronic devices were distinguishable as they did not arise in the border context. Simmons remains binding notwithstanding technological advances.

K. Teskey – Defence Counsel