Are You Legally Required To Give Border Agents Your Cellphone Password?

Alain Philippon was arrested at an airport in Halifax last year after he refused to give his cellphone password to border agents. The 39-year-old man faces charges under the Customs Act for hindering border officers from conducting their investigation duties after he wouldn't give them the password for his phone. Philippon's lawyer Joel Pink entered his plea of not guilty just a few months ago and now the case is planned to head to court in August of this year.

If convicted, the charge carries with it a penalty of roughly $25,000 and possibly one year in jail. What will be interesting to see, is to find out whether or not the court will declare that Canadians are expected to reveal their phone password to border officers when asked for it. “They can look at your phone. They can take your phone. If they have reasonable grounds to suspect there is something going on, they can even take your phone away and crack it and forensically examine it. But whether they can make you give them the password, right there on the spot, is not at all clear,” according to Robert Currie, director of the law and technology institute at the Schulich Law School.


Currie also suggested that a Section 8 charter challenge could be brought forth over the matter at trial. This particular section deals with unreasonable search and seizure, along with the right to privacy. The Supreme Court of Canada has previous defined the guidelines for police searching smartphones during any criminal investigation, but “it's becoming increasingly clear that in a customs setting we're going to need some revision,” says Currie.


When it comes to border agents searching the phone, University of Alberta law professor Matthew Lewans says that the agents would need to have a justified reason for searching the phone. “When you look at the Customs Act even under the enforcement section, they say an officer may search a person whose arrived in Canada within a reasonable time if the officer suspects on reasonable grounds that the person has secreted anything (illegal) on his person,” Lewans said. Canadian Civil Liberties Association executive director Sukanya Pillay, has said that for Canadians at the border, “there are reduced expectations of privacy, but there is not a negation of all privacy rights nor the rights to presumption of innocence.”


Back in 2014, the Supreme Court of Canada decided in Fearon v. R that warrantless cell phone searches were justified during a police arrest, and when conducted properly that they did not violate Charter rights. Although they deemed the search allowable, they also pressed that certain safeguards should be put into place so that the searches were compliant with the Charter. Among those safeguards was the condition of it being a lawful arrest, the search must be incidental and not the object of the arrest, the nature and extent of the search must be tailored to its purpose, and the police must record detailed notes about the search; among other requirements and details.  

The Philippon case coincides with rising concern over online and electronic security and there are many people interested from around the world who are watching to see what the verdict in this case will be. “It's not just the Canadian national media,... Literally, media from all over the world - talk radio, radio stations, [and more],” said Currey. This may be the first case of its kind to be heard in Canadian court.


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