The CBC (Quebec resident Alain Philippon to fight charge for not giving up phone password at airport and the Halifax Chronicle Herald (Quebec man faces charge for refusing to let Halifax border guards check his phone) are reporting that a man from Quebec has been charged with obstruction for not giving this smartphone password to a Canada Border Services Agency inspector upon his return to Canada at Halifax International Airport.
It would appear that the individual has been charged under s. 153.1 of the Customs Act, which deals with "hindering" a customs officer:
Hindering an officer 153.1 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.
To my knowledge, this is the first case of its kind. I haven't been able to find any case where this provision has been used in similar circumstances.
There is little doubt that there is a reduced expectation of privacy at the border, and past cases have found that a warrantless search of a laptop for child pornography was as justifiable as a search of a suitcase. What will be most interesting to watch as this cases progresses is whether the Courts will take into account more recent Supreme Court cases dealing with laptop and cell phone searches and if there is a positive duty on the part of a traveler to unlock or provide the password to a digital device.
This is definitely a case to watch: if a Court finds this accused has obstructed or hindered a customs officer in this case, it would likely also be an offense to refuse to unlock a smartphone for a police officer carrying out a lawful search.
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