TORONTO: Canadian border officials in Halifax have charged a man after he refused to hand over the passcode for his smartphone, but an expert in the law says it’s not clear whether such demands are legal.
Alain Philippon is charged with “hindering” under section 153.1 of the Customs Act, according to Canadian Border Services Agency representative Cindy MacKenzie.
That section of the Customs Act, which governs border inspections, reads: “No person shall, physically or otherwise, do or attempt to do any of the following: (a) interfere with or molest an officer doing anything that the officer is authorized to do under this Act; or (b) hinder or prevent an officer from doing anything that the officer is authorized to do under this Act.”
Rob Currie, director of the Law and Technology Institute at Dalhousie University’s law school, said it’s “open question” whether border security can demand passcodes and then search electronic devices, because the question has not been tested in Canadian courts.
“The provisions of the Customs Act that set out the powers of the duties of the customs officers do not speak to this particularly situation very clearly,” he told CTV’s Power Play Thursday, noting that the act predates such electronic devices.
While Currie said the law allows border agents to “inspect” phones, computers and tablets, it’s not clear whether they’re allowed to demand passwords or even use the phones to access data held on remote servers.
“(The) Supreme Court of Canada has been clear recently that a cellphone is not like a suitcase, it’s not like a filing cabinet, it’s not like a purse or a handbag,” he said. “It’s got access to an enormous amount of data and the privacy interest in your cell phone and your computer is a lot higher.”
At the same time, Currie said that the border is not a place where Canadians can expect much privacy.
“Customs officials do have quite a license to fish,” he said. “They have a fairly broad discretionary power and we have said through parliament that that’s a good thing, that we want them to have those powers to search things where they have reasonable grounds at all (to) suspect something untoward.”
He said that the Supreme Court of Canada’s recent 4-3 decision that police can conduct limited searches of suspects cellphones without warrants does not apply here.
If found guilty, Phillipon faces a minimum fine of $1,000 and a maximum fine of $25,000, “and could include possible jail time,” according to the CBSA’s MacKenzie.
