On Monday night, Alain Philippon, a Canadian citizen, was passing through customs at a Nova Scotia airport when border patrol officers demanded that he provide the password to his smartphone. Philippon refused. He was promptly charged with obstructing border security, a criminal charge under the Canadian Customs Act, which he plans to fight in court.
Philippon’s legal battle against this absurd abuse of power is principled and important. It is also probably futile. Canada’s laws surrounding search and seizure are flimsy, malleable, and—by American standards—draconian. Nowhere is this fact more apparent than in Canadian law surrounding cellphone searches. Just months after the U.S. Supreme Court unanimously ruled that police officers need a warrant to search a smartphone, the Canadian Supreme Court ruled the exact opposite, holding that the invasion of privacy involved “was not particularly grave.” Barring a shift in court personnel, a similar ruling is likely in Philippon’s case.
Why is Canadian search-and-seizure law so awful? The problem traces back to Canada’s Charter of Rights and Freedoms, an analog to America’s Bill of Rights. Whereas the Bill of Rights’ Fourth Amendment declares flatly that “the right of the people” to be free from “unreasonable searches and seizures … shall not be violated,” the Charter takes a more nuanced (that is, squishy) view. Section 8 gives everyone “the right to be secure against unreasonable search or seizure”—but Section 1 says this right is subject to “reasonable limits prescribed by law” that are “demonstrably justified in a free and democratic society.”
This outward balancing of rights and limits, now called proportionality, essentially gives judges carte blanche to curtail rights when they believe a more pressing interest has arisen. Canadian judges need only show that the law abridging the right is necessary, rationally connected to a proper purpose, and significantly beneficial to society. In last year’s case, the court decided that warrantless cellphone searches are constitutionally kosher because they “may serve important law enforcement objectives.” If a warrantless search of a cellphone is OK post-arrest, it’s probably also permissible at border patrol, where everyone’s expectation of privacy is significantly diminished.
Defenders of the Canadian system like to point out that America’s Fourth Amendment prohibits only “unreasonable searches and seizures,” giving judges wide latitude to determine which searches are actually “reasonable.” But the U.S. Supreme Court has consistently held that the warrant requirement is the rule, and warrantless searches the exception, usually justified only by safety concerns in exigent circumstances. And even when a warrant is not required, law enforcement generally must still have “reasonable suspicion” that criminal activity is afoot before performing a search. Canada’s Charter, by comparison, lets judges dispense with the warrant requirement pretty much willy-nilly, so long as they can articulate some plausible justification.
This distinction becomes exceedingly important in a situation like Philippon’s. The leading American case on electronic border searches, issued by the 9th Circuit, dictates that law enforcement must have a “reasonable suspicion of criminal activity” before breaking into password-protected files. Current Canadian law, on the other hand, would seem to let custom agents force their way into any electronic device—sans warrant, sans reasonable suspicion—in the name of border security.
Both American and Canadian doctrines of privacy rights in a digital age are undergoing a sea change as judges grapple with increasingly tech-savvy criminals. (American judges have been especially stumped by the questions of self-incrimination when it comes to password protection and forced decryption; one court held that suspects can be forced to unlock a phone protected by fingerprint but not a phone protected by a written passcode.) At this point, however, it’s pretty clear that the Canadian Charter is not nearly as protective of digital privacy as the Fourth Amendment. Even when they don’t get it right, American judges are at least seriously thinking about how the Constitution protects our electronic devices from intrusive searches. Canadian judges seem to have put digital privacy roughly on par with free speech—a nice idea in theory, but just not worth it in fact.