Not less than a year ago, the Supreme Court of United States in David Leon Riley V. California has held that warrantless search by Police of a person’s Mobile phone (particularly data) is generally unconstitutional. Last week, a person from Quebec was arrested u/s 153.1 (b) of the Canadian Customs Act.
Facts1: On March 2, 2015, Alain Philippon, 38, of
Ste-Anne-des-Plaines, Que., refused to divulge his cellphone's password to
Canada Border Services Agency during a customs search at Halifax Stanfield
International Airport. In an email, a border services spokesperson wrote,
"Officers are trained in examination, investigative and questioning
techniques. To divulge our approach may render our techniques ineffective.
Officers are trained to look for indicators of deception and use a risk
management approach in determining which goods may warrant a closer
look." While the detainee, maintains to fight the charge stating that the
data on his cellphone is Personal. He has been released on bail, and will
return to court in Dartmouth on May 12 for election and plea.
Law: The charging section2 in this case basically
tantamount to obstruction of Customs Officer in exercise of his Authority/
power (interestingly it is not mere duty).
However, the officer in exercise of his power is
prohibited by Section 163 (4)3 for looking for evidence of a Criminal Offence
under any other law. Therefore, we can narrow down the scope of the powers of
the officer to and for the very contravention of the Customs Act, which only
relates to imported goods in this case. There can be other instances, but since
the detainee has not been made aware of any other offence he is being suspected
of being committed, as is constitutionally obligatory; we can safely rule that
option out.
The obvious nature
of the issue that is going to emerge from this particular case is that of intrusion
of Right to Privacy. Therefore, it is noteworthy that the burden of showing
that the attempted search of the data stored in the cellphone (Blackberry) of
the accused and asking for its password (note that the accused was not directed
to enter the password but was directed to reveal the very password), came
within the purview of non- intrusive examination of goods.4
Section 98 relates to search of a
person & Section 99 envisages
to examination of good (imported goods generally). It is interesting to note,
that the data inside a Blackberry is primarily in form of electronic mails etc.
It would be a shame if the customs officers are to misuse their powers under
the Customs Act & exceed them to contravene the safeguarding provisions
under the same act i.e. Sections5 99 (2) & 99 (3). The legislature has
created another bar on the powers of the Customs officers with regard to
examination of goods by excepting the examination of “mails”, which is what the
nature of data stored on a blackberry is all about, of course, the Customs
Officers would have a tough time proving that such mails even combined together
weighed more than 30 grams, and hence amenable to search.
The perusal of whole of the Customs Act would
reveal that much leeway has been given to the officers for search of any goods under
the Act, however it is not obligatory on the accused/ detainee to reveal any
personal information, much less any information that may possibly lead to his detention. Moreover, the right against self-
incrimination is constitutionally protected.6 And if a person refuses to
incriminate himself by an omission, the same should not be made, per se, an offence.
We must not mistake in distinguishing between
search of imported goods & that of personal effects. Legislative intention when gathered from the whole of Customs Act only shows that it seeks to deal with imported goods, however the personal cellphone of the accused is being made to appear as the “goods” in question,
which is a dangerous approach of interpreting law, and most certainly of
enforcing it. Moreover, it may be kept in mind that the electronic data is outside
the purview of “goods” as such and it’s a debatable issue if such data could fall under non- intrusive search for the purposes of Customs Act.
But separating the chaff from the grain here would be to understand that the accused was arrested not because he would not unlock his Blackberry, rather for not revealing his passcode to someone else- may it be an instrumentality of state. After all, whats the use of having a passcode, that isn't personal i.e. unique to your memory. What if the accused uses the same password for his credit/ debit cards etc.? Will the State own up to the tortious liability, if the accused becomes a victim of financial fraud? \
One thing is certain, the Canadian Courts need to decide whether the Constitutional Rights7 guaranteed to its citizens become a mere lip service once their citizens unfortunately fall in the bracket of "accused/ suspect". Because to me, it seems that the Constitutional Rights make much sense tot he citizens only in distressing situations, otherwise they are dead letters anyway. Whats more distressing than a surprise Arrest !!
One thing is certain, the Canadian Courts need to decide whether the Constitutional Rights7 guaranteed to its citizens become a mere lip service once their citizens unfortunately fall in the bracket of "accused/ suspect". Because to me, it seems that the Constitutional Rights make much sense tot he citizens only in distressing situations, otherwise they are dead letters anyway. Whats more distressing than a surprise Arrest !!
1 http://www.cbc.ca/news/canada/nova-scotia/quebec-resident-alain-philippon-to-fight-charge-for-not-giving-up-phone-password-at-airport-1.2982236↩
2 Hindering an officer:153.1 No person shall, physically or otherwise, do or attempt to do any of the following: (b) hinder or prevent an officer from doing anything that the officer is authorized to do under this Act.↩
3 Limitation on powers: 163 (4) A designated officer may not use any power conferred on the officer for the enforcement of this Act for the sole purpose of looking for evidence of a criminal offence under any other Act of Parliament.↩
4 Non-intrusive examination of goods: 99.3 (1) An officer may, in accordance with the regulations and without individualized suspicion, conduct a non-intrusive examination of goods in the custody or possession of a person who is in or is leaving a customs controlled area.↩
5 Examination of Goods: Exception for mail: 99. (2) An officer may not open or cause to be opened any mail that is being imported or exported and that weighs thirty grams or less unless the person to whom it is addressed consents or the person who sent it has completed and attached to the mail a label in accordance with article RE 601 of the Letter Post Regulations of the Universal Postal Convention. (3) An officer may cause imported mail, or mail that is being exported, that weighs thirty grams or less to be opened in his or her presence by the person to whom it is addressed, the person who sent it or a person authorized by either of those persons.↩
6 Section 11. Any person charged with an offence has the right (c) not to be compelled to be a witness in proceedings against that person in respect of the offence↩
7 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. 8. Search or seizure: Everyone has the right to be secure against unreasonable search or seizure. Detention or imprisonment 9. Everyone has the right not to be arbitrarily detained or imprisoned.↩
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