Guilty plea ends case that pitted cellphone privacy rights against border security powers

Guilty plea ends case that pitted cellphone privacy rights against border security powers

Guilty plea ends case that pitted cellphone privacy rights against border security powers

Graeme Hamilton | August 15, 2016 11:04 PM ET
More from Graeme Hamilton | @grayhamilton

MONTREAL — A Quebec man arrested last year at the Halifax airport for refusing to provide border officers with the password for his cellphone pleaded guilty Monday and was ordered to pay a $500 fine.

Alain Philippon’s plea on the eve of a scheduled trial brought an abrupt end to a case that was being watched closely as a test of the line between privacy rights and the state’s power to control its borders.

Robert Currie, director of Dalhousie University’s Law and Technology Institute, said the plea deal represents a “missed opportunity” to explore an emerging legal question.

“We’ve got case law around the Customs Act, going back in time, which says essentially that you have next to no privacy at the border,” Currie said in an interview. “On the other hand, we’ve got very recent case law from the Supreme Court of Canada, starting in about 2010, that says you’ve got an intense amount of privacy in your electronic devices.

This is something that has got to be litigated

Philippon, 39, was returning to Canada from the Dominican Republic in March 2015 when he was pulled aside by the Canada Border Services Agency and as part of a search asked to provide access to his BlackBerry. He refused to give the password and was charged under the federal Customs Act with hindering or preventing an officer from doing his job.

A statement of facts read into evidence Monday in Nova Scotia provincial court in Dartmouth stated that Philippon had two cellphones, $5,000 in cash and that a swab scan of his luggage tested positive for cocaine.

The charge carried a maximum sentence of a $25,000 fine and a year in jail. The $500 fine was a joint proposal of the federal Crown and the defence, taking into account the fact Philippon spent a night in custody after his arrest, that his plea saved two days of trial and that the BlackBerry remains in CBSA possession.

In a paper to be published this fall in the Canadian Journal of Law & Technology, Currie argues that there need to be clearer guidelines governing when CBSA officers can demand access to electronic devices.

“Searches of devices should not be permitted randomly or on the basis of mild suspicion, curiosity or personal whim on the part of a CBSA agent,” he writes.

And even if a search of a phone is justified because an officer has reasonable grounds to suspect it contains evidence that a crime has been committed, it is not clear the suspect can be compelled to provide a password.

Currie wrote that it would be “unacceptable” for someone like Philippon to be found guilty of hindering or preventing a CBSA officer “based on their refusal to do something that the state has no power to compel them to do.”

The article was written before Philippon’s guilty plea, and Currie said Monday he would not second-guess the decision to avoid trial. “That’s up to him,” he said. But he said if the CBSA continues to use the threat of a “hindering or preventing” charge to get people to open their phones, a similar case will likely arise.

“This is something that has got to be litigated,” Currie said.