A law professor in Halifax said the case of a Quebec man charged with hindering border officials is open to a challenge of the Canadian Charter of Rights and Freedoms.
Alain Philippon, 38, of Ste-Anne-des-Plaines, Que., wouldn't share his Blackberry password with Canadian border agents in Halifax on Monday night. He was returning to Canada by air from Puerto Plata in the Dominican Republic.
Philippon spent the night in custody was was released the next day on $1,000 bail. The charge of hindering a customs officer carries a maximum penalty of $25,000 and a year in jail.
Rob Currie, the director of the Law and Technology Institute at the Schulich School of Law at Dalhousie University, said border agents have an established legal right to search you or your bags at the border.
But he said it's not clear whether they should be able to force a traveller to reveal a smartphone password.
Currie said the charge against Philippon could fall down on that point.
He said a charter challenge under Section 8 could be brought at trial. That section of the Canadian Charter of Rights and Freedoms deals with unreasonable search and seizure, and by extension, the right to privacy.
"The provincial court, that's where the trial will be held. And that is a perfectly good venue for any charter arguments that he or his counsel choose to make," said Currie.
Case draws worldwide attention
Currie has faced a barrage of media requests since he spoke to CBC News about the case on Wednesday.
"It's not just the Canadian national media," he said. "Literally, media from all over the world — talk radio, radio stations. This morning I got an interview request from a TV station in Russia of all places. So it really has been remarkable."
Currie said the story coincides with a rising public awareness around electronic security.
Currie thinks that even in the past three years, smartphones have become more deeply integrated in the lives of Canadians.
"I think people really are thinking at the front of their minds about, 'What is the status of my device, and do I want the government looking into it, and what kind of rights do the government have?'"
Case has 'resonated with regular people'
Currie said he's also received about a half dozen calls from Canadians who are upset about smartphone searches at the border.
"Those are the kinds of stories I'm hearing. Demanded to give up their passwords, they've talked about dialogue they've had with customs officials, they have expressed opinions about the powers of customs officials, and that kind of thing. So it's definitely something that's resonated with regular people who travel."
The Supreme Court of Canada has already defined how and when police can search smartphones during a criminal investigation. Currie believes the Customs Act, which treats a smartphone the same as a suitcase, needs to be updated.
"It's becoming increasingly clear that in a customs setting we're going to need some revision to accommodate the privacy interests in electronic devices, in the same way that the Supreme Court has given us revisions dealing with search and seizure, and dealing with search incident [that leads] to arrest, and that kind of thing," he said.
Philippon will be back in court May 12 in Dartmouth to plea to the charge.
When contacted for comment by a CBC reporter in Quebec, he declined.