A Quebec man is facing charges of obstruction after refusing to give his cell phone password to border officials. CBC reports the incident occurred on Monday night at Halifax’s Stanfield International Airport and Alain Philippon, 38, is currently out on bail.
In December of last year, the Supreme Court of Canada laid out criteria that must be met for your phone to be searched following your arrest. The first is that the arrest must be lawful, while the second is that the search much be ‘truly incidental’ to the arrest. Finally, the search must be tailored to its purpose (i.e., if they think you’re guilty of robbing a store and using the device to communicate with a friend following the event, they have no reason to look at photos you took three months ago), and the police must keep notes on what they looked at.
The supreme court ruling is clear on warrantless cellphone searches, but the password protection is more of a grey area. Since these searches are being allowed on the basis to solve or prevent a crime from occurring, it stands to reason that password protection wouldn’t matter.
Rob Currie, director of the Law and Technology Institute at the Schulich School of Law at Dalhousie University, told the CBC this is a first for Canadian courts as it has yet to rule on whether border control officials can demand your cellphone password. Though the above Supreme Court ruling certainly wouldn’t apply, Currie said the Customs Act allows customers officers to search your belongings. Whether that includes a customs officer to search your phone will be decided on May 12th.