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Legal Report: Canadian Court Finds Border Searches of Electronic Devices Are Unconstitutional

Security Management’s Legal Report is a monthly column that highlights the instances where legal matters intersect with the security industry. Our team tracks court cases, new and developing legislation, and regulatory decisions or investigations that affect private organizations and security professionals worldwide.

To share a tip or notify Security Management about emerging legal issues, email Associate Editor Sara Mosqueda at [email protected]

Judicial Decisions

Canada

Privacy. An Ontario appeals court determined that warrantless searches of personal electronic devices (PEDs), previously permitted under the Customs Act, are unconstitutional.

The Customs Act subsection 99(1)(a) gave Canada Border Services Agency (CBSA) officers the power to search goods being imported without the need for reasonable suspicion. Personal devices, including smartphones and laptops, fell under the definition of applicable goods, and lower courts determined that searches of these devices were considered routine and therefore did not require reasonable grounds to initiate a search.

The case began when two men—Jeremy Pike and David Scott—separately returned to Canada. CBSA officers searched their PEDs, and both men were then charged with possessing and importing child pornography. Pike and Scott challenged the constitutionality of the searches.

In his ruling, the appeals court chief justice determined that the subsection of the Customs Act violated constitutional protections since it permitted searches of some of the most private information without a sufficient threshold to justify the search, such as reasonable suspicion.

The appeals court also determined that the evidence found on the PEDs was admissible in the cases against Pike and Scott given “the border officer’s good faith reliance on the existing law when conducting the searches,” according to the decision. Pike was previously acquitted by a trial court, but the acquittal was appealed by the Crown. Scott was sentenced to 23 months of house arrest.

The court is holding the invalidation for six months to give Parliament time to amend the law. (R. v. Pike, Ontario Court of Appeal, No. C70656, COA-23-CR-0023, COA-23-CR-0638, 2024)

Poland

Spyware. The nation’s Constitutional Tribunal blocked an inquiry into alleged abuse of the Pegasus spyware by Poland’s ousted Law and Justice Party (PiS).

The Sejm, the lower house of Poland’s parliament, submitted the claim, accusing the PiS of using the spyware to target political opponents while the party held power between 2015 and 2023. Prosecutors had begun to build a case against former PiS government officials, seizing Pegasus equipment from government premises.

The unanimous decision, which was made by three judges, cannot be appealed. No reasons were given for the decision. (The scope of the activity of the Sejm inquiry committee, Constitutional Tribunal, U 4/24, 10 September 2024)

South Korea

Climate change. South Korea’s top court determined that the nation’s existing climate change law failed to protect basic human rights and lacked protections for future generations. The Constitutional Court determined that the law violates constitutional provisions that protect citizens’ rights to live in a healthy environment, impacting their liberty and happiness.

The court ruled that climate risks “can damage all environments foundational to daily life,” thus threatening the life and physical safety of citizens, which the government is responsible for.  

The court called on the National Assembly of the Republic of Korea to revise the Carbon Neutrality Framework Act by the end of February 2026. The legislature will also create year-by-year carbon reduction targets for 2031 and 2049. (2020 Heonma 389, The Constitutional Court of Korea, 2021Hun-Ma1264 (consolidated), 2024)

United States

Sexual assault. In September, former CIA officer Brian Jeffrey Raymond was sentenced to 30 years in federal prison for drugging and sexually assaulting at least two dozen women.

During court proceedings, victims described being lured on dating apps before they were drugged at his government-leased apartment. Once the women were unconscious, Raymond would photograph and assault the victims. For roughly 14 years, he took and kept more than 500 videos and photographs of these incidents. (United States of America v. Brian Jeffrey Raymond, U.S. District Court for the District of Columbia, Criminal Action No. 21-380, 2024)

Excessive force. The city of Burlington, Vermont, agreed to a $215,000 settlement, ending a lawsuit where the defendant accused a police officer of using excessive force.

Mabior Jok was standing outside and having a heated conversation with at least one other individual in 2019. Upon witnessing the interaction, the police officer, Joseph Corrow, suddenly slammed Jok to the ground. Prior to the assault, Corrow did not identify himself as an officer nor give Jok any instructions or use any verbal commands, the lawsuit alleged.

Of the settlement, $140,000 will be paid by the city’s insurance carrier while the remaining $75,000 will be paid by the city. (Mabior Jok v. City of Burlington, et al., U.S. Court of Appeals for the Second Circuit, No. 22-413, 2024)

Gun control. The U.S. states of California and Hawaii enacted gun prohibitions in 2023 specific to certain places, but the laws were struck down last year by federal judges. In September 2024, a federal appeals court partly reinstated the bans. It determined that although firearms can be banned in California parks and bars, they can’t be banned in banks and hospitals.

The ruling stated that California could ban guns from bars, casinos, libraries, museums, parks, playgrounds, restaurants that serve alcohol, and sports arenas. Hawaii’s ban applies to beaches, establishments serving alcohol, and parks.

However, the appeals court judges said that the bans are limited and that neither state can apply them to banks, and that California cannot apply them to churches, medical facilities, or public transit. (Jason Wolford, et al. v. Anne E. Lopez, in her official capacity as the Attorney General of the State of Hawaii (consolidated), U.S. Court of Appeals for the Ninth Circuit, No. 23-16164, 2024)  

Sex trafficking. A Milwaukee, Wisconsin, woman was sentenced to 11 years for killing her alleged sex trafficker.

The court also ordered that Chrystul Kizer, 24, who pled guilty to reckless homicide, will serve five years parole upon her release from prison.

Kizer argued that she was justified in the killing, calling it self-defense. At the time, Kizer was 17 and was allegedly trafficked by Randall Volar, 34. Kizer accused Volar of trafficking her since she was 16 years old.

Although a Wisonsin law absolves trafficking victims of criminal liability for criminal offenses committed as a result of being trafficked, prosecutors countered that legislators did not mean for the law to absolve homicides. (State of Wisconsin v. Chrystul D. Kizer, Supreme Court of Wisconsin, No. 2018KN003329, 2024)

Legislation

Australia

Climate change. The House of Representatives passed the 2024 Treasury Laws Amendment bill, which introduced mandatory climate-related reporting for companies, effective in January 2025.

The new law will require all public and large proprietary companies (those with more than 500 employees) to disclose climate-related risks and opportunities. Medium-sized companies (having more than 250 employees) and smaller companies (having more than 100 employees) will have until July 2026 and July 2027 respectively to begin complying with the reporting requirements.

Businesses must prepare annual sustainability reports that include climate-related financial disclosures.

U.S. States

Artificial intelligence. California Governor Gavin Newsom vetoed a bill that would have created the nation’s first safety measures on artificial intelligence (AI). Although state legislators largely supported the bill (SB 1047), Newsom said it was overly stringent and could place a burden on leading artificial intelligence companies in the state.

The bill proposed making technology legally liable for any harm that would result from its AI model. The legislation would also have ordered companies to create a kill switch that would shut down AI technology if it were misused or could be used to cause catastrophic harm.

Regulations

United Kingdom

Fraud. The UK’s Financial Conduct Authority fined Pricewaterhouse Coopers (PwC) £15 million ($19.3 million) for failing to inform regulators that London Capital & Finance (LCF) might have been involved in fraud prior to the company’s collapse.

In its capacity as an auditor, PwC came across issues while auditing LCF in 2016. LCF ultimately collapsed in 2019, resulting in significant losses for investors. The investors were compensated with £20 million from British taxpayers.

While the auditor was not involved in the misconduct that occurred at LCF, regulators determined that PwC failed to report its suspicions to the authority.

Also of Interest

Security Management tracks court cases, bills, laws, and regulatory issues that impact the security industry. Here are some of the stories that are of current interest.

Civil disobedience. A court in Hong Kong has issued the first sentences related to Hong Kong’s national security law. One man was issued 14 months in prison for wearing a shirt with a protest slogan, and another man was sentenced to 10 months in prison for writing statements on the back of bus seats promoting independence for Hong Kong.

Workplace safety. Almost six months after the Francis Scott Key Bridge collapsed in Baltimore, Maryland, the families of three of the workers who were killed in the collapse filed a lawsuit against the owner of the cargo ship that struck the bridge.

Workplace violence. A convicted drug dealer was charged with threatening six U.S. Supreme Court justices and their families. The man is accused of sending more than 465 threatening messages and if convicted on all counts could face up to 155 years in prison.

 

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