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
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
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
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.
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