Customs Notice 22-07: Regulations for the Examination of Documents Stored on Personal Digital Devices Made Pursuant to the Customs Act

Ottawa, April 1, 2022

Notice of Intent to Develop Examination of Documents Stored on Personal Digital Devices Regulations

Notice is hereby given that the Canada Border Services Agency (CBSA) is developing regulations to prescribe legally-binding controls on the examination of documents stored on personal digital devices (PDD). The intent is for the proposed regulations to come into force as soon as possible following Royal Assent of related legislative changes to the Customs Act under Bill S-7.

The proposed regulations in this Customs Notice would be made in accordance with proposed paragraph 99.4(a) of the Customs Act.

The proposed Examination of Documents Stored on Personal Digital Devices Regulations would prescribe requirements for conducting examinations of personal digital devices by designated CBSA officers.

Specifically, the proposed Regulations would set out the requirements for CBSA officers to conduct an examination of a PDD within prescribed legally-binding controls. Requirements would include a provision to ensure that all necessary steps are taken so that only documents stored on the device at the time of border crossing are accessible during the examination.

In addition, these proposed Regulations would set out that notes are to be taken for every PDD examination where the officer has reasonable general concern that a document on the device contravenes CBSA program legislation or the document is evidence that a contravention has occurred or may be occurring at the time of border crossing. Required notes would detail the steps taken by the officer to ensure only documents stored on the device were accessible during the examination. They would also include when the device was examined (i.e., date, time, and duration), the basis for examination (i.e., facts giving rise to officer concerns), a description of the device examined (e.g., make and model), the manner in which it was examined (e.g., manual exam), and what was examined (e.g., documents and applications reviewed accessed).

The proposed regulations would enshrine existing policy elements into law and would result in little additional cost. Policy controls detailing parameters on how a PDD examination should be conducted already exist and include, steps to disable network connectivity, comprehensive notetaking requirements, and handling solicitor-client privilege information. Making some of these policy controls legally-binding would give them the force of law, reinforce privacy protections, and increase transparency and public confidence in the CBSA’s actions. These proposed regulations would not only allow the Agency to respond to the Court’s declaration of constitutional invalidity but would also demonstrate Charter compliance when PDD examinations are subject to judicial or external review.

There are no anticipated incremental training costs associated with these proposed regulations. Policy updates are conveyed to the field regularly and updates to related training and briefing material are done on an evergreen basis. The CBSA would incur minor costs related to communication and outreach activities needed as a result of the regulations (e.g., updated web content on the CBSA webpage, development of an operational bulletin and briefing materials to stakeholders about the regulations) which would be absorbed within existing operating budgets.

As these changes would largely reflect what is already directed by CBSA policy, officers would experience no additional operational burden. There would be no observable difference for the travelling public as these changes only enshrine existing policy into regulation.

For public consultation: Examination of Documents Stored on Personal Digital Devices Regulations

Comments on the proposed regulations can be submitted by July 15, 2022 to:

Terri Gabbatt
Manager, Traveller Facilitation and Customs Policy Unit, CBSA
Terri.Gabbatt@cbsa-asfc.gc.ca