Should I hand over my phone when entering Canada if an officer asks me to?
In this modern world where most of us use electronic devices to communicate, to store our information, to work and even to use them as tools to move from one place to another, to take our photos and to carry the information that we could eventually need, these devices have become our right hand to facilitate movement from one place to another. When you move to a country, either temporarily or permanently, you want to take with you as much information as possible which you may need in your future life. Even when you are out for a holiday, you try to take with you all the necessary information so that your holiday or your pleasure trip becomes a pleasant experience. This has been facilitated by the creation or invention of smartphones and laptops.
Most people, especially people under 35, handle today all their financial, personal, medical, work or professional information on their smartphones, so that all the privileged or private information is at hand in their pocket. It has become very common for people, regardless of the reasons of their travel, to carry the phone they use in their day-to-day life. The question that gives tittle to our article is: Should I hand over the phone if a border officer asks me to? Is this legal? If I am at a port of entry of a country, and in this case in Canada, and I have my phone, or my computer or my electronic tablet, does the border officer have the authority to force me to hand over my device and not just hand it over and that he can inspect it, but also have be able to check the content or information that I have in those devices?
Well, the answer for you, according to Canadian law, is that as of today, these types of electronic devices are considered to be personal property that at the time of entry to Canada are considered to be imported into the country. As such, the Canadian Customs Act on its section 99.1 and section 99.3 defines which goods are subjected to examination at the time of entry, in such a way that it determines that all personal property is subjected of examination, so long as it is present at moment of entry into the country. Under this section, border officials have the ability to take away your phones or confiscate them, which could be a severe measure, and to investigate the information they have inside.
The dichotomy or the problem here is whether the officer can take your device because it is a personal property item in itself and can check it to see if it is subject to explosives or whatever or has the authority to go further and review the privileged or private information that you have on that phone. It is important to mention what the Canadian chapter on rights and freedoms states, which is basically the Constitution, or is part of our constitutional rights: section eight establishes that every person in Canadian territory is protected under this section from not being subjected, or you are protected to defend yourself against being subjected to evaluations or inspections and seizures of your assets without any logical grounds. In other words, there cannot be a seizure or an investigation of your property that does not have a concrete cause.
This chapter is quite clear because it gives the constitutional right to anyone who is in Canadian territory to protect themselves from being the subject of inspections and seizures that do not have a proper legal basis. So, we ask ourselves: if we have this constitutional right, how is it possible that we are forced to hand over our electronic devices which contain privileged information, and that this private information is protected by privacy laws? This happens because as of today, there is no law that defines exactly what the difference is between the electronic device and the information that this electronic device contains. The rationality behind why officers can gain access to investigate the information that is inside the device is because they compare the equipment or electronic device with a briefcase and they say – “Well, a person who enters Canada can be investigated and can be inquired as to what their bring on their briefcase”. The difference is that the content of a briefcase is quite limited compared to the content of the information contained on an electronic device. Many people store on their electronic devices all their financial information, in a single same device, which is not the same as if the person could do a search on a professional briefcase or, let us say, a lady’s purse.
Based on this, border officers today have the power to check your phone and if they ask for your phone, not only do they have the power to check the device itself, but if you are asked to unlock it, you have to do it as they are on their right, because they are seeing it as a personal property being imported at the time of entry into Canada. The only thing I can tell you is that up to now, as there is no law that protects information or that sets a difference between the electronic device and the information it contains, you are obliged to hand out the device and let this device be subjected to inspection and it can even eventually be confiscated for anything the officer determines or deems suspicious.
My recommendation to avoid this unpleasant moment is that if you are traveling, it does not matter from where to where or what your final destination is, or if you have privileged information or not, do not cross the border with the device on or with the device in your hands, just turn it off and leave it in your purse or somewhere in your suitcase, while you finish with the assessment or the admissibility interview at any border. Now, if you are a person, a doctor or a professional who keeps third-party information or privileged information inside your phone and you do not want to put this at risk, my advice is: 1) encrypt the information. Another tip that I can think of is to clean up the phone so that it does not have fingerprints and they cannot know what the password is if the phone is confiscated and 3) besides encrypting the phone you can also clean all the information on the phone and upload it to a cloud to have it available whenever you may need it in a safe way. In addition to that, also as a way of protection, and I mentioned this previously, is to simply turn the phone off, you do not need to have the phone on unless you have no problem with letting your phone be seen or you do not have third-party information on your phone. I can even dare to say that, due to the absence of specific legislation, the privilege between lawyer and client can be violated by a port-of-entry officer, including the privilege of a doctor, which exists between a doctor and his patient. Why? Because there is nothing that prevents the officer from seizing your phone, and in addition to confiscating it, inspecting it deeply, exposing the third-party information that you may have as a professional on your phone. My recommendation is that if that is your case, you have to identify yourself, either as a lawyer or as a doctor. Show your credentials, tell the officer that you store all your work information on your phone and that you have privileged information that cannot be subjected to seizure nor to inspection without a court order. If the officer insists, you insist on talking to a superior and if he insists, simply ask that your phone be kept as evidence in a closed bag and that when the court order is issued, you will unlock it or hand them the password so that they can access it to investigate what is inside the phone.
Yes, it feels like a pretty strong issue, but that is the law as it is today. The best way to avoid any problems is not to travel with your cell phone in your hands, leave it in your bag or wherever you have it and turn it off. If you have third-party information or privileged information, simply clean your phone, upload your information to the cloud and download it according to you needs, instead of having it on the phone. So, if you are entering Canada, it does not matter if you are a permanent resident, Canadian citizen or just a visitor to Canada, you can have your phone seized and your phone can be subjected to inspection and seizure, so you have to bear in mind the information you keep on your phone when you are crossing over a Canadian border.
I am Angelica González Blanco and I say goodbye for now, but not before telling you that the best practice is to keep your sensitive and privileged information in a safe place, not with you and in a place when only you can access it and not in a handheld device or on a portable device. Remember that you can contact us at www.angelicagonzalezblanco.com or follow us through our social networks or at our phone number 647-494-7801. See you next time!
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