Can the CBSA demand that a person give them their smart phone password? (Photo: REUTERS/Mark Blinch)
A Quebec resident, who got into a dispute with border officials last year over his refusal to give them his smart phone password has plead guilty to a charge of hindering or obstructing border officials and been fined $500.
Last year, Alain Philippon was traveling from the Dominican Republic to Halifax. When arriving at customs control, Canadian Border Services Agency officers found $5,000, traces of cocaine on his bags and two phones.
Officials then demanded that he hand over his smart phone and the password but while he complied with handing the phone over, he wouldn’t reveal his passport to officials and was charged with violating the Customs Act.
Can the CBSA actually demand that a person give them their smart phone password? According to experts, the answer is yes.
Benjamin Berger, associate professor at Osgoode Hall Law School at York University told CBC News, "Because we have at some level chosen to attempt to cross a border, it's in a sense, us who has engaged our liberties, not the police having inserted themselves into our lives."
Rob Currie, director of the Law and Technology Institute at the Schulich School of Law at Dalhousie University, underlines Berger’s point that when someone chooses to cross the Canadian border, their privacy expectation is reduced. As a result, CBSA officers have the right to inspect the goods people carry with them, which includes electronic devices.
He tells CBC News, "The term used in the act is 'goods,' but that certainly extends to your cellphone, to your tablet, to your computer, pretty much anything you have."
The Customs Act states that “. . .every person who is leaving a customs controlled area shall, if requested to do so by an officer. . . present those goods and remove any covering from them, unload any conveyance or open any part of it, or open or unpack any package or container that an officer wishes to examine”.
As the law stands right now, smart phones are treated the same as any other good at the border, which means customs can ask to examine them.
However, the Canadian Charter states that Canadians have a right to be free of “unreasonable search and seizure”, which means that if CBSA officers right to demand smart phone passwords are challenged, the court could set limitations around CBSA officers abilities to demand them.