Can Border Control Access Your Cell Phone?

By Klaudios Mustakas | March 12, 2015

Klaudios Mustakas – Senior Immigration Advisor: Someone didn’t want the Canada Border Service Agency poking around in their cell phone. Now that person has been charged:

Canadian border officials in Halifax have charged a man after he refused to hand over the passcode for his smartphone, but an expert in the law says it’s not clear whether such demands are legal.

Alain Philippon is charged with “hindering” under section 153.1 of the Customs Act, according to Canadian Border Services Agency representative Cindy MacKenzie.

That section of the Customs Act, which governs border inspections, reads: “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.”

Rob Currie, director of the Law and Technology Institute at Dalhousie University’s law school, said it’s “open question” whether border security can demand passcodes and then search electronic devices, because the question has not been tested in Canadian courts.

I believe that CBSA has every right to request that any traveler wanting to enter Canada must avail themselves for examination both of their person (some drug mules have drugs on their body) as well as any items they may be carrying. For example, the cell phone may have child porn, which is prohibited.

CBSA has every right to look at your computer. By extension, they can look at your smart phone, which is virtually a computer in itself. I don’t believe the accused has a leg to stand on in this case. While the specific topic of smart phones/passwords at the border may not have been tested in court, I’d be very surprised if the courts said phones were off limits to border officials.

Klaudios Mustakas is a former senior manager with the Canada Border Service Agency (CBSA) and Citizenship and Immigration Canada (CIC). He has 37 years of federal government service, including international diplomatic assignments in the United States and the Middle East. He retired as Chief, Enforcement (CBSA) in December, 2010.