Alain Philippon, a Quebec man, was charged last year for refusing to give up his smartphone password at the Halifax airport when Canada Border Security Agency (CBSA) requested him to do so. He was charged under the Customs Act for hindering or preventing border officials from performing their duties when he refused to give out his password to his phone. He contested the charge and is continuing his court battle against the agency and a decision is expected shortly in this interesting case.
The Charter of Rights and Freedoms allows that all people have the ‘right to be secure against unreasonable search of seizure”. This means that in Canada if you are not under arrest police require a warrant to search your lap top. If the police arrest you and your phone is unlocked then they can look into your information. If the phone is locked then they can compel you to provide your password to unlock the device. The search must be limited to the investigation in question though, not to unrelated alleged crimes.
There are no legal precedents for the border agents though. This is an interesting problem and may lead to the government having to update the laws governing our border officials. The CBSA takes the position that the Customs Act gives them authority to examine all goods including electronic devices such as mobile phones or laptops. They take the position that by approaching the border we enter into a ‘voluntary’ engagement with the police rather than the police inserting themselves into our lives. IN essence we accept a reduced level of privacy at the border.
The BC Civil Liberties Association takes the position that equating the right to search suitcases with the right to search phones is problematic though, as cellphones are markedly different from other kinds of goods. They would like to see the laws updated, and to establish standards under which CBSA officials can search devices like cell phones without having suspicion of the individual undertaking a wrongdoing.
Update: August 16
Mr. Philippon pled guilty and has been fined $500. Further details released yesterday in court revelaed he had two cell phones, a considerable amount of cash on hand, and there were traces of cocaine on his things. The CBSA still has one of his phones.