Canada’s highest court has yet to decide on whether the search of a smart phone by customs officers at a land or airport port of entry is constitutionally valid. The Philippon case from March 2015 could have been the perfect opportunity for there to be a test case of this legal issue.
The case
In March 2015, Mr. Alain Philippon flew to Canada from the Dominican Republic and landed at the international airport in Halifax, Nova Scotia. He approached the customs security desk along with his bags and two phones. He had on him $5,000 in cash and there were traces of cocaine on his bags. The Canada Border Services Agency (CBSA) asked him to turn over his smartphone and for his password.
Mr. Philippon handed over his Blackberry but he refused to provide his password. He was later arrested and charged under the federal Customs Act with hindering or obstructing customs officers. The specific section he was charged under was s. 153.1: “No person shall, physically or otherwise, do or attempt to do any of the following… (b) hinder or prevent an officer from doing anything that the officer is authorized to do under this Act.” The penalty for contravening this provision is listed at s. 160.1: fine from $1,000 up to $25,000 and or up to twelve months in jail. The prosecution of the matter is exclusively summary proceedings. Mr. Philippon ended up agreeing to a plea deal wherein he entered a guilty plea to this charge of “obstruction” and received a $500.00 fine.
The law
The power to examine goods is listed at section 99 in the Customs Act as follows: “An officer may (a) at any time up to the time of release, examine any goods that have been imported and open or cause to be opened any package or container of imported goods and take samples of imported goods in reasonable amounts…” “Goods” are defined in s. 2 of the Customs Act to include “any document in any form.” Powers of officer (2) An officer who stops a person referred to in subsection (1) may (a) question the person; and (b) in respect of goods imported by that person, examine them, cause to be opened any package or container of the imported goods and take samples of them in reasonable amounts. The customs agent also has the power of search listed at section 98 in the Act: An officer may search (a) any person who has arrived in Canada, within a reasonable time after his arrival in Canada, (b) any person who is about to leave Canada, at any time prior to his departure, or (c) any person who has had access to an area designated for use by persons about to leave Canada and who leaves the area but does not leave Canada, within a reasonable time after he leaves the area, if the officer suspects on reasonable grounds that the person has secreted on or about his person anything in respect of which this Act has been or might be contravened, anything that would afford evidence with respect to a contravention of this Act or any goods the importation or exportation of which is prohibited, controlled or regulated under this or any other Act of Parliament.
The legislation demonstrates that customs officers have extraordinary authority to examine all goods coming in and leaving the country. This examination is unique only to customs agents— regular police enforcement officers do not have this ability.
The Alberta Court of Appeal in a decision called The Queen v. Canfield ruled that certain provisions of the Customs Act are a violation of certain provisions in our Canadian Charter of Rights and Freedoms, namely section 8, 9 and 10(a). However, the Court held that the overriding public interest in preventing the spread of child pornography overrode the accused rights violations and later admitted the evidence. The accused were convicted. Their leave to appeal application on the narrow issue of admissibility of evidence was denied by the Supreme Court of Canada. That is as close as it would get to the highest Court in the land.
The smartphone
Over the past several years the Supreme Court of Canada has handed down several decisions where they have discussed the importance and significance in the technological evolution of the smartphone. A noteworthy quote from Justice Karakatsanis dissenting reasons: “However, the high privacy interest individuals have in their electronic devices tips the balance in favour of exclusion. Judicial pre-authorization is an essential bulwark against unjustified infringements of individual privacy. Unwarranted searches undermine the public’s confidence that personal communications, ideas and beliefs will be protected on their digital devices. This is particularly important given the increasing use and ubiquity of such technology. It is difficult to conceive of a sphere of privacy more intensely personal or indeed more pervasive than that found in an individual’s personal digital device or computer. To admit evidence obtained in breach of this particularly strong privacy interest, one of concern to an ever-increasing majority of Canadians, would tend to bring the administration of justice into disrepute.”
The courts have stipulated as did the SCC in The Queen v. Simmons, that one expects a lower level of privacy when entering Canada via land, sea or airport entry. There must be a reasonable test to be imposed on border officers. The result is as being tabled in Bill C27, the new data protection Bill that will replace the current PIPEDA legislation, is that a border services office must have at least a reasonable level of suspicion before they are allowed to seize and search a person’s smart phone or other personal electronic device.
Privacy matters
Because there is a risk your device may be inspected by a border services agent, it is wise to put your smart phone into “airplane mode” so that any information stored in the cloud is inaccessible by any other person. You could also take the additional step of wiping your smart phone but doing that will necessarily involve a lot of time to retrieve all the data that was there and return it to the same position you found it earlier. The best advice one can impart is to be “nice” and cooperate with the authorities at the port of entry. Print your receipts and boarding passes prior to boarding your flight bound for Canada rather than relying upon receipts you kept on your phone. Typically border agents want to see your receipts to confirm your purchases while away and your boarding passes to confirm the duration of your trip.
Keeping your electronic devices in flight mode and restricting access to the cloud is the best way to maintain privacy.
