Quebec resident charged at border for not giving up phone password

[escapefromstress]

For SP's and hobbyists who thought their secrets were safe as long as their phone or computer was locked and password protected when they cross they border ... this could have serious consequences.

The case of a Quebec man charged with obstructing border officials by refusing to give up his smartphone password has raised a new legal question in Canada, a law professor says.

Alain Philippon, 38, of Ste-Anne-des-Plaines, Que., refused to divulge his cellphone password to Canada Border Services Agency during a customs search Monday night at Halifax Stanfield International Airport.

Philippon had arrived in Halifax on a flight from Puerto Plata in the Dominican Republic. The charge against him carries a maximum penalty of $25,000 and a year in prison.

Rob Currie, director of the Law and Technology Institute at the Schulich School of Law at Dalhousie University, said that under Canadian law, travellers crossing the Canadian border have a reduced expectation of privacy. He said border officials have wide-ranging powers to search travellers and their belongings.

"Under the Customs Act, customs officers are allowed to inspect things that you have, that you're bringing into the country," he told CBC News. "The term used in the act is 'goods,' but that certainly extends to your cellphone, to your tablet, to your computer, pretty much anything you have."

Philippon has been released on bail, and will return to court in Dartmouth on May 12 for election and plea.

Currie said the issue of whether a traveller must reveal a password to an electronic device at the border hasn’t been tested by a court. "This is a question that has not been litigated in Canada, whether they can actually demand you to hand over your password to allow them to unlock the device," he said. "[It's] one thing for them to inspect it, another thing for them to compel you to help them."

Currie said the obstruction case hinges on that distinction.

https://ca.news.yahoo.com/quebec-man-charged-not-giving-013217433.html

 

[Larry Storch]

(snip) "[It's] one thing for them to inspect it, another thing for them to compel you to help them." Currie said the obstruction case hinges on that distinction. (snip)

I think this would conflict with your right to remain silent. The police can ask you anything they want, but you don't have to answer, however the CBS does have some pretty broad reaching powers. If he is successful I can see new laws being put in place to counteract this.

 

[vancity_cowboy]

I think this would conflict with your right to remain silent. The police can ask you anything they want, but you don't have to answer, however the CBS does have some pretty broad reaching powers. If he is successful I can see new laws being put in place to counteract this.

as often happens here on perb, you are confusing u.s. law with canadian law. you have no such right in canada

canadian police forces are restricted in what questions they can lawfully ask of you in different situations, but if they are lawful in their questions, you must answer them or be guilty of an offense

 

[Jethro Bodine]

as often happens here on perb, you are confusing u.s. law with canadian law. you have no such right in canada

canadian police forces are restricted in what questions they can lawfully ask of you in different situations, but if they are lawful in their questions, you must answer them or be guilty of an offense

Not sure where you got that from?
I'm not a lawyer but have certain amount of personal experience n this area. No I'm not a criminal either. LOL!
In Canada you certainly do have the right to remain silent.
First of all if you are ever questioned by the police but not under arrest you can simply tell them to have a nice day and walk away.
If you are arrested and questioned by the police in Canada, they have to offer you the right to speak to an attorney first. They even have to provide you with the number of a lawyer if you don't have one on speed dial. If you are smart you do this. Any first year law student then would tell you that if they ask you anything that you are not comfortable answering or you feel may jam you up you simply state "On the advice of council I wish to remain silent/I respectfully decline to answer your question."
They can't do squat about that.

Here's another thing people don't know. Without a warrant they cannot cross your threshold to arrest you even though you are 3 feet in front of them. Even an Arrest Warrant does not allow them to enter a private dwelling unless it is also a Warrant to enter said premises, which most are not. How do they get around that? When the police come to your house they will often ask "Do you mind if we come in?" or "Can we talk inside?" Innocent enough questions right? And being a polite person you say "Sure, come on in."
SUCKER! You fell for it. Now, if they decide while questioning you, to arrest you, they can. Oh and btw, they now can walk all through your house and look for things "in plain view" and it is amazing what they can see "in plan view" hidden on that top shelf in your closet.

CBS is whole different story. They can do all kinds of things that even the police can't. Why? Because even if you are a Canadian citizen, you are not technically re-entered into Canada (on Canadian soil) when they re dealing with you, so many of your constitutional protections don't exist. And they can refuse even a citizen, entry into Canada.
It's like when you go through US Customs at Vancouver Airport. Once through, you are for all intents and purposes in the USA, even though you are still in Vancouver.

Cheers

 

[vancity_cowboy]

re-read my second paragraph carefully ^^

you are at all times required to provide identification to police if asked, and answer the question 'is that your identification?'

different police forces have different rules governing what they can ask in different situations, and you may or may not be required to answer them, depending on what you were doing when approached. for example, if they have reasonable grounds to believe that you were in the act of committing a crime, they can ask a hell of a lot more than if they are just doing an id check on you. you can always refuse to answer lawfully asked questions, but in some cases, you will be committing a crime by doing so, and must answer to that

wikipedia has a pretty good review of the laws regarding silence in different countries http://en.wikipedia.org/wiki/Right_to_silence#Canada

you are definitely right about entering a dwelling

btw, it's counsel, not council

 

[Jethro Bodine]

re-read my second paragraph carefully ^^

you are at all times required to provide identification to police if asked, and answer the question 'is that your identification?'

different police forces have different rules governing what they can ask in different situations, and you may or may not be required to answer them, depending on what you were doing when approached. for example, if they have reasonable grounds to believe that you were in the act of committing a crime, they can ask a hell of a lot more than if they are just doing an id check on you. you can always refuse to answer lawfully asked questions, but in some cases, you will be committing a crime by doing so, and must answer to that

wikipedia has a pretty good review of the laws regarding silence in different countries http://en.wikipedia.org/wiki/Right_to_silence#Canada

you are definitely right about entering a dwelling

btw, it's counsel, not council

Damn! :doh: You got me on that spelling mistake. My bad.

I'd love to see that law you say allows them to charge me for refusing to answer a question, though.

And when you say "different police forces have different rules governing what they can ask in different situations,..." I assume you mean in different countries than Canada. Last time I checked, because this is all governed by rules under Federal jurisdiction, all police forces in Canada have to follow the same rules regardless of where they are. These are not local or provincial laws.

You are right about the identification. the cops can even detain you until they are satisfied you have properly proven your identity.

Cheers

 

[badbadboy]

Sure makes one want to take 100% sterile gear whenever you cross the border.

Work phone - check
Pooner Phone - check
CBSA Phone - check

More phones than hands. This is one crazy ass world we live in.

 

[westwoody]

Re the locked phone: what did he expect? If you don't want to give up your password you know this is going to happen. Have a clean phone for travelling.
I don't take my perb surfing tablet or my pooning phone when I cross borders, it's common sense.
I doubt CBSA gives a crap about that anyway. But they do catch people with under *age* shit frequently.
I am surprised they proceeded with charges instead of simply seizing the phone, which might have been less work for them. Maybe they are sending a message or maybe this guy is not so innocent. We've all seen people at customs lineups who act like jerks. There has to be more to this. They likely would have warned him that he had a choice of giving up the password or being charged. I would definitely give up the password. Why didn't he?

 

[Larry Storch]

(snip)
CBS is whole different story. They can do all kinds of things that even the police can't. Why? Because even if you are a Canadian citizen, you are not technically re-entered into Canada (on Canadian soil) when they re dealing with you, so many of your constitutional protections don't exist. And they can refuse even a citizen, entry into Canada.
It's like when you go through US Customs at Vancouver Airport. Once through, you are for all intents and purposes in the USA, even though you are still in Vancouver.

Cheers

Charter of rights and Freedoms Section 6: Every citizen of Canada has the right to enter, remain in and leave Canada.
All they can do is detain you/delay your entry.
I don't think passing through customs is the same as crossing an international border. All you have done is clear customs.

as often happens here on perb, you are confusing u.s. law with canadian law. you have no such right in canada

canadian police forces are restricted in what questions they can lawfully ask of you in different situations, but if they are lawful in their questions, you must answer them or be guilty of an offense

From the B.C. Civil Liberties Association.

Identifying Yourself
Sometimes, even though you don’t have to, it’s a good idea to give the police your name and address. Use your common sense. Most of the time, according to the law, you do not have to give the police any information.
You only have to give police your name and address if:
1.you are under arrest;
2.you are driving a car. Passengers in the car do not have to give the police their names or addresses; or
3.a police officer is giving you a ticket (for breaking a city bylaw or any other law) or serving you an
appearance notice.
The Right to Remain Silent
You have the right to remain silent. Except for polite conversation, it is best not to say anything to the police until you have spoken to a lawyer.
What to say to police:
1.Be polite.
2.Do you want to leave? Ask: “Am I free to go?” If yes, then go.
3.If you are not free to go, ask: “Am I under arrest?” If yes, ask why.
4.If you are under arrest, say: “I want to remain silent. I want to speak to a lawyer.” Give your name and address if the police ask. Get the police officer’s badge number.
5.If you are not under arrest, but you can’t leave, ask why. Get the police officer’s badge number.
You have the right to remain silent, except where you must give the police your name and address.

https://bccla.org/wp-content/uploads/2014/08/2008-BCCLA-Handbook-Arrest-Handbook-English.pdf

 

[Jethro Bodine]

Thanks for that Larry. Excellent information.

 

[vancity_cowboy]

thank you larry. looks like i was mostly wrong on this one. jethro, you have my apologies

the legal information society of nova scotia has a page devoted to remaining silent with the police as well. their advice is exactly the same

http://www.legalinfo.org/criminal-law/you-and-the-police.html#faq03

 

[Jethro Bodine]

No need to apologize.
PERB is a place for the free and civil exchange of ideas and opinions.
Some of the most heated debates I've had were with very good friends over a beer.
One of my best friends is a card carrying NDP socialist. By that, I mean he believes the government should control most of our lives and redistribute most of our incomes.
You should see us go at it. But at the end of the day we've been buddies since we were kids and I know he'd do anything for me.

Cheers

 

[Larry Storch]

thank you larry. looks like i was mostly wrong on this one. jethro, you have my apologies

the legal information society of nova scotia has a page devoted to remaining silent with the police as well. their advice is exactly the same

http://www.legalinfo.org/criminal-law/you-and-the-police.html#faq03

No worries VCC, glad to help.

No need to apologize.
PERB is a place for the free and civil exchange of ideas and opinions.
Some of the most heated debates I've had were with very good friends over a beer.
One of my best friends is a card carrying NDP socialist. By that, I mean he believes the government should control most of our lives and redistribute most of our incomes.
You should see us go at it. But at the end of the day we've been buddies since we were kids and I know he'd do anything for me.

Cheers

My sentiments exactly.

I'm a big believer in knowing what our rights are and exercising them. Doesn't mean we have to treat the police like crap, but there are some who will push the boundaries as far as they can. Those are the ones who need to be reminded that we all have the same rights, even them and their families. A buddy and I were just talking this evening how the police are more, for lack of a better word, aggressive. When I was a kid some of them would actually joke around with you and treat you with mutual respect. Now it's like every civilian is up to something and they are going to find out what it is and bust them for it. I honestly don't feel safe around them.

 

[Riza]

Well just a little something I do that might work for others. When I am traveling somewhere where I will come under the scrutiny of customs or border patrol I take some steps to safeguard my phones information. I have a IPhone 5s for work and it has a option of deleting all information on the phone after 10 failed password attempts. Before getting to the checkpoint area I enter 9 wrong password attempts. If I am asked to unlock my phone I just enter 1 more and oops, no more info on my phone. Can't figure out how that happened Good thing I have my phone backed up but only on my home computer. Sorry mister customs officer, guess nothing I can do to help you out, have a good day. Me and my Iphone have a love hate relationship, for this option I love it hehe

 

[87112]

Pretty soon some smart lawyer is going to keep the Government off our phone. That will be finally the day we love a lawyer.

 

[nmjoff]

Use "Keepsafe" and app that lets you store "Your goods" in a file that is password protected you can set it up so that if you enter your "Bad" pin everything gets erased, you can keep a backup of "your goods" at home and reload it later...