Border guards have long had more powers to search individuals than police, but a case this week will finally make Canadian courts determine whether those guards can force you to turn over the passwords to your phone or computer without a warrant, legal and privacy experts tell Yahoo Canada News.
For police, the law was clarified in December when the Supreme Court of Canada ruled on the case of Ontario man Kevin Fearon, who was convicted after a Toronto flea market robbery. Police looked through his cellphone after his arrest and found pictures of a gun and cash and a message about jewelry.
The Supreme Court’s 4-3 decision said police can conduct a limited search of a suspect’s cellphone without a warrant— but they must follow strict rules.
Now, the rules for border officers from Canada Border Services Agency (CBSA) are about to get tested in the courts.
Alain Philippon, 38, of of Ste-Anne-des-Plaines, Que. was charged Monday under section 153.1 (b) of the Customs Act for refusing to give up his cellphone password, CBC News reported. CBSA agents at Halifax’s Stanfield International Airport questioned him when his flight landed from the Dominican Republic.
CBSA did not respond Thursday to a request from Yahoo Canada News for clarity on the rules. Nor have they publicly announced why they wanted to see the man’s phone.
Philippon said he intends to fight the charge of hindering or preventing border officers from doing their jobs, saying items on his phone are “Personal.”
His refusal, according to an earlier statement to CBC News from CBSA, will cost him a minimum fine of $1,000, although the court could increase it to a maximum of $25,000 along with the possibility of a year in jail.
Philippon has been released on bail, and will return to court in Dartmouth, N.S. May 12 for election and plea, CBC reported. The story clearly has a great deal of public interest, being shared more than 15,000 times and about 2,000 comments were made by Friday morning.
Experts agree this could be a landmark case.
“Requiring a password unlock is another step beyond a mere search, but does reflect the approach that has been emerging within the law,” University of Ottawa law professor Michael Geist told Yahoo Canada News.
Geist said the issue of border searches has been the subject of a “long-standing debate.”
“Courts have ruled that expectation of privacy is lower at a border crossing, which may lead to searches that would not be lawful in other contexts. Similarly, courts have ruled that searching electronic devices is permitted.“
One man who understands that better than most is Toronto criminal lawyer Sam Goldstein, who represented Fearon at the Supreme Court.
Goldstein was asked by Yahoo Canada News about the case involving the Quebec man – and the differences between police and border searches.
“Every Canadian has a right to re-entry, but your expectation of privacy against unreasonable search and seizure is lower because of the legitimate interest of the state to control what is coming across the border,” Goldstein said in an interview with Yahoo Canada News.
“I think we can expect that you are going to have a lower expectation of privacy in your luggage, but the argument is that you have a higher argument of privacy in your phone even with what the Supreme Court said in the Fearon case.”
“If you are not a Canadian citizen, you have no right of re-entry, so you could refuse to hand over the password, and the remedy by the state is that they don’t have to let you in the country.”
The B.C. Civil Liberties Association published a privacy handbook on the issue, saying the rules for border agents are much less strict than those faced by police.
“Because of Canada`s interest in protecting its borders, border guards are allowed to search you at a border crossings in a situation that wouldn’t be enough to give a police officer grounds to search you anywhere in Canada,” reads the handbook.
“The standard of reasonable grounds is lowered at border crossings, because there are compelling reasons to allow border guards more abilities to search people without having to show reasonable and probable grounds.”
BCCLA said under the Customs Act, a CBSA officer does not need to have individualized suspicion to search your luggage or other possessions.
“In fact, the Supreme Court of Canada decided in a case (R. vs. Monney 1999) that the degree of personal privacy reasonably expected at border crossings is lower than in most other situations, and that people expect to be subjected to questions and inspections at border crossings because of the state’s compelling interest in protecting its borders by preventing the entry of undesirable persons and prohibited goods, and in protecting tariff revenue.”
The Office of the Privacy Commissioner of Canada also put out a guide on crossing borders called Checking In - Your privacy rights at airports and border crossings. A spokesperson for the Privacy Commissioner said there are still some legal issues that need to be clarified.
“Our understanding is that the issue of whether a border security agency can compel an individual to provide a password for a personal electronic device at a border crossing is not something that has been specifically looked at by the courts,” Valerie Lawton wrote in an email to Yahoo Canada News.
For Goldstein, the issue definitely need the courts to make a determination.
“The Supreme Court has acknowledged that there is a higher expectation of privacy in cellphones or computers and there is no longer a distinguished difference between cellphones and computers,” he said during a break from a murder trial.
”It will be interesting to see how the court analyzes when someone is coming over the border with a password in their phone as to whether the state can just demand it of someone without a warrant. Can the state simply rely on the Customs Act regulation?”
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