whiskey601 said:Hmmm.... searches conducted by CBSA will be examined on the basis on the underlying authority that gives them the power to search. They will not be held to a law enforcement standard under the Criminal Code, they will be held to a Customs Act standard for the purposes of conducting the search itself. The Federal Court (the Chief Justice) has made this clear in in decisions involving other agencies with search powers that are not derived from the Criminal Code, X (Re), 2017 FC 1047 (CanLII) being a recent example of a search authorized by a law other than the Criminal Code.
This is what I believe to be the case too. Fearon is interesting and has some persuasive value, but is of limited value because it deals with police conduct in criminal investigations. The powers afforded to BSOs for customs purposes are quite different and more extensive, and are court-tested. However this eventually shakes out, I'm confident that BSOs will not be restricted to the criteria set out in Fearon for examination of the contents of digital devices. They aren't seeking evidence for a suspected or alleged offense; they are screening entry into the country.