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Canadian Immigration Blog


Is Your Electronic Device Password CBSA-Proof?

August 18, 2016
iphone-410324_960_720 Mario Bellissimo

Canadian border officials in Halifax charged Alain Philippon on March 2, 2015 with “hindering” under section 153.1 of the Customs Act after he refused to provide the passcode for his smartphone. On Monday August 15th, 2016 he plead guilty in a Nova Scotia provincial court and was ordered to pay a fine of $500.00.  This was a case that received some notoriety because it was not completely clear in law when and under what circumstances the power of border officials extended to persons entering Canada having to turn over their passwords.

Undoubtedly, the government is given more latitude in the collection and use of private information as crossing a border is not considered a constitutional right.  Also, when Canadian information is pulled into the U.S. database, or vice versa, it is not subject to the privacy laws of the originating country, but rather the policy of the country now holding the information.  So border officers can search your vehicle, body, luggage, pockets, etc. This includes electronic devices, i.e.: cell phones, tablets and laptops.

The Customs Act authorizes officers “to examine all goods and conveyances including electronic devices, such as cell phones and laptops”. If you are a foreign national you have no right of entry. If you refuse to consent to searches or hand over passwords to phones and laptops, the remedy is that they do not have to let you in the country. Moreover, even if you are a Canadian citizen or permanent resident in refusing to turn over these items like Mr. Phillippon, this can result in a charge of hindering or preventing border officers from performing their role. The principal difference in law thus far from regular interaction with officers is the arguable voluntary nature of the engagement with a border officer (i.e.: you are presenting yourself there/ you do not have to go).

In turn, the Supreme Court of Canada over the past number of years has held privacy attaches to electronic devices in a number of decisions but the issue of what aspect and scope of that privacy survives a border crossing has not been litigated beyond provincial courts.  So despite hopes this case could have led to a more focused decision on this specific issue, we will have to await another day.  So for now, your clever password may be hacker proof but likely not “border officer” proof . . .

 


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