Privacy vs Security at the Border

This post is in: March 18, 2015

Customs Act charges raise unresolved questions about cell phone searches

A recent arrest and laying of charges in Halifax, NS has prompted a flurry of discussion and media interest over an issue which has not received a great amount of attention in the case law: what powers do officials with the Canada Border Services Agency (CBSA) have to search the cell phones, tablets or computers (hereafter “devices”) of people entering Canada? While it is not the usual practice of the editors to report on a case which is at such an early stage, we feel that the intense public interest in the legal issues justify a short comment.

The facts of the case as they have been reported are as follows: a Quebec resident named Alain Philippon, returning from a trip to the Dominican Republic, was stopped at the Halifax airport by customs officials for what appears to have been “secondary inspection.” This involved a search of material he had with him, including his cell phone. The official who stopped him demanded that he provide the password, but Philippon refused to do so. He was arrested and charged under s. 153.1(b) of the Customs Act, which provides:

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.

Philippon was released on bail and has returned to his home. He has not commented on the case, other than to say he intends to fight the charge. He faces a fine of up to $25,000 and up to one year in jail.

The first question raised by the case is the scope of the search powers that CBSA officials have—can a search of devices be carried out in the absence of a search warrant or where the search is not incident to an arrest? In general terms it is clear from the case law that there is very broad discretion for searches under the applicable sections of the Customs Act (see esp ss. 11, 12 and 99). CBSA is permitted to search the person of travellers and also to search “goods,” “containers” or “receptacles” that they have with them. There is no requirement of reasonable and probable grounds such as would enable a warrant to be obtained, or for an arrest to be in progress.

The courts have found these powers to be acceptable under s. 8 of the Charter because while the border is not a Charter-free zone, the reasonable expectation of privacy is reduced. As the Ontario Court of Appeal commented in R v Jones: “The state is expected and required to interfere with the personal autonomy and privacy of person seeking entry to Canada. Persons seeking entry are expected to submit to and co-operate with that state intrusion in exchange for entry into Canada.” Moreover, the courts have thus far consistently interpreted the term “goods” as including devices for this purpose (see, eg, R v Leask).

However, it is arguable that we have moved into a time when considering devices to be "goods", even in the customs setting, is no longer sufficient. Over the course of the last five years the Supreme Court of Canada has held with increasing certainty that the privacy interest resident in these kinds of machinery is different, and more profound, than in normal possessions. A phone or computer, after all, potentially contains the kind of information that is at a person’s "biographical core" and which immediately attracts s. 8 protection against unnecessarily over broad searches. Cases such as R v Morelli, R v ColeR v Vu, R v Spencer and R v Fearon clearly demonstrate the Court's view that due to the amount and nature of the personal data contained in (or accessible by way of) computers of all sorts, a high threshold of privacy must be overcome or at least accommodated by state officials in order for a search to be lawful. The Court has even been developing (in Spencer, in particular) the idea of "informational privacy" as an evolving privacy value that underpins the s. 8 analysis.

This case law has established new procedural requirements in the settings of obtaining search warrants, search and seizure, obtaining data from third parties and search incident to arrest. Accordingly, it seems logical that a s. 8 challenge to a customs border search made against the backdrop of these authorities might very well produce a result consistent with them: that despite the overall lower expectation of privacy at the border, computers are not analogous to suitcases, handbags or purses and need to be treated with greater attention to the privacy interest attached to them.

The other interesting aspect is the demand for the password. Again, the Customs Act contains obligations for people appearing at the border to allow inspection of their belongings and to actively facilitate the searches by opening (or “causing to be opened”) any luggage or containers they have with them. The privacy interest in devices, however, is inevitably going to complicate this issue. Is requiring you to “open” your phone by providing CBSA officials with your password truly analogous to being made to open a suitcase? In the normal search and seizure setting one does not have an obligation to assist the state in carrying out the search. Similarly, with investigative detention, the police are empowered to ask questions but the individual is not required to answer them.

There is US case law on this issue, but it has not been resolved to any degree of certainty. The courts sometimes find that to demand that the accused facilitate access to the data offends the principle against self-incrimination, which is embodied in the Fifth Amendment to the US Constitution. In Canada, to date there appears to be only one case that has considered the issue at all, and without any real analysis. In R v Buss (reported in a previous issue of this newsletter), the accused willingly gave up the password to his computer at customs but later argued that the results of the search should be excluded. The court dealt with the issue of compelling the password briefly:

I do not find that, in this context, the requirement to provide a password offends the right to be free from self-incrimination.  To hold otherwise would have the result of an enhanced right against self-incrimination at the border.  As R. v. Jones points out at para. 40:

The mere fact that a person has attracted the suspicion of a Customs official, thereby causing that official to ask routine questions and conduct a routine search, does not give that individual any enhanced constitutional protection against self-incrimination.

Again, in light of the recent Supreme Court of Canada case law, this approach (with respect) seems insufficient. Even in the context of search incident to arrest, where the overall expectation of privacy is quite low, the Court in Fearon required that searches of cell phones be carried out with a minimum of intrusion and carefully-documented. To be clear, that is in circumstances where police have grounds to arrest the person—surely a less invasive standard should be set for a situation where a person has, for some reason, “attracted the suspicion of a Customs official.”

In any event, this is part of what makes the Philippon case an interesting one to follow: the accused only interfered with or hindered the CBSA officials in their duties if they were lawfully entitled to demand his password and he was lawfully obliged to provide it. Therefore, his ultimate guilt or innocence could rest on this extremely novel issue, which must necessarily be informed by the SCC's recent case law on informational privacy.