Article by Cyndee Todgham Cherniak
The answer is, “Yes”, the Canada Border Services Agency (“CBSA”) can ask for your passwords. Not only can the CBSA ask for your passwords, the CBSA does ask for passwords. Not only does the CBSA ask for passwords, the CBSA will unlock your cell phones, mobile phones , smart phones, computers, etc and look at/review your emails, your photographs, your videos, your text messages, etc. If you do not provide your passwords, you could be arrested and charged and end up with a criminal record. Just ask Mr. Alain Philippon.
News broke today (August 16, 2016) that Mr. Philippon has pleaded guilty (on the eve of trial) to not providing his cell phone password to the Canada Border Services Agency (“CBSA”). Alain Philippon was arrested by the CBSA in March 2015 and charged pursuant to section 153.1 of the Customs Act (Canada) for failing to provide passwords. Section 153.1 of the Customs Act provides that:
“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.”
A CBSA officer is authorized under section 99 of the Customs Act to examine goods in a traveler’s possession. The term “goods” is defined in the Customs Act to include “any document in any form”. Electronic communications, data and documents would satisfy the definition of “goods”.
According to the Agreed Statement of Facts, Mr. Philippon had $5000 and two PDAs in his possession. He was sent to secondary examination where swabs of his bags registered a reading for traces of cocaine. Mr. Philippon refused to provide the passwords to his PDAs. It is not known whether Mr. Philippon ever did provide those passwords or if he did get his PDAs back from the CBSA.
As a result of the plea deal (to plead guilty and pay a fine of $500), we will never know whether the Nova Scotia Provincial Court has difficulties with the CBSA arresting a person for not providing a password. This was a smart decision by Philippon who could have been fined up to $25,000 and/or imprisoned for up to one year. The moral of this story is that the CBSA can ask for your passwords and you may end up with a criminal record if you do not provide the passwords.
Customs lawyers have been waiting to learn what a court would say about what first appeared to be an extreme position taken by the CBSA. Travelers are regularly requested by the CBSA to provide passwords to cell phones, PDAs, computers, etc. Most travelers comply for fear of the ramifications (also, most travelers have nothing to hide, except embarrassing photos and videos).
Under Canada’s domestic laws, the police do not have an absolute right to ask for passwords. Individuals in Canada have privacy rights and charter rights. The rules are very different at the border.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.