Reasonableness as Proportionality: Towards a Better Constructive Interpretation of the Law on Searching Computers in Canada
| Author | Agathon Fric |
| Position | Is a graduate of Dalhousie University's Schulich School of Law and holds a Bachelor of Arts (Honours) in Political Science from Carleton University |
| Pages | 59-82 |
APPEAL VOLUME 21
n
59
ARTICLE
REASONABLENESS AS PROPORTIONALITY:
TOWARDS A BETTER CONSTRUCTIVE
INTERPRETATION OF THE LAW ON
SEARCHING COMPUTERS IN CANADA
Agathon Fric*
CITED: (2016) 21 Appeal 59
INTRODUCTION..................................................60
A. Method ......................................................61
B. Scope ........................................................62
I. COMPUTERS, PRIVACY & THE LAW IN CONTEXT .................63
A. e Privacy Interests in Digital Information Are Unique .................63
B. Assessing the Reasonableness of Searching Digital Information ............64
II. SEARCHING ELECTRONIC DEVICES INCIDENT TO ARREST .......67
A. Law as Integrity ................................................68
B. A Poor Constructive Interpretation .................................69
III. SEARCHING ELECTRONIC DEVICES AT THE BORDER.............73
A. Distinguishing R v Fearon ........................................74
B. A Fourth Category? .............................................75
C. e Border Fallacy ..............................................76
D. A Better Constructive Interpretation ................................78
E. Proportionality as Integrity........................................80
CONCLUSION ....................................................82
* Agathon Fric is a graduate of Dalhousie Uni versity’s Schulich School of L aw and holds a Bachelor
of Arts (Honours) in Politic al Science from Carleton Universit y. He is currently articling as a
student-at-law with the Court of Q ueen’s Bench of Alberta. Speci al thanks go to Professor Sheila
Wildeman, without whose feedback and guidance this article would not have been written.
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APPEAL VOLUME 21
INTRODUCTION
It is axiomatic to sugge st that the law tends to be a reactive forc e. Very rarely, or
successfu lly, has the law been used to positively in uence the behaviours of social actors
until sucient dama ge has been done to catapult an is sue into the mainstream . Even when
it does emerge, proactive regu lation has traditionally b een the domain of legislature s.
Unlike courts, p oliticians are not obliged to justif y their decisions on the basis of or
in spite of what came before, freeing t hem to pursue whatever ends they wis h, on any
grounds whatsoever, subject only to the con stitution. However, when one accounts for
the exponential speed at wh ich technology develops, legislatures do not fa re much better
at future-proong their l aws, and when the state’s interest is arguably opposed to that of
the individual, cou rts will necessari ly be called upon to strike the bal ance. Case in point:
on March 3, 2015, Canada Border Services Agenc y (“CBSA”) personnel at the Halifax
Staneld Internationa l Airport charged A lain Philippon, a Quebec man retu rning from a
trip to the Dominican R epublic, with hindering an ocial f rom doing something he was
authorized to do under the federa l Customs Act, namely to search any “goods” up to the
time of the traveller’s release at the border.1 In particu lar, Philippon was alleged to have
“hindered” t he ocial’s investigation by refusi ng to divulge the pass code that would
unlock his Blackberry smartphone.2 In November 2015, he pleaded not guilty and h is trial
was scheduled for Aug ust 2016.3 If convicted, Philippon faces a mandatory m inimum
$1,000 ne with a maximum p enalty of $25,000 and 12 months of imprisonment.4
Had Philippon willi ngly disclosed his pas sword, enabling border ocers to search t he
contents of his phone, he would have been among the many tr avellers who have passively
surrendered access to t heir personal electronic devic es, either “not wanting any trouble”
or “having nothin g to hide.”5 However, news of Philippon’s civil disobedience quick ly
spread around the world, mak ing international headli nes and leaving many Can adians
wondering whether border agents act ually have the legal aut hority to search their cell
phones and, if so, whether that should be t he case.
Section 8 of the Canadian C harter of Rights and Freedoms states: “Everyone has t he right
to be secure aga inst unreasonable searc h or seizure.”6 e highly sensitive nature and
sheer volume of information that computers, such a s laptops, tablets, cellular phones,
and other electronic devic es, hold or have the ability to access remotely go to t he
“biographic al core”7 of an individua l and thus attract a reasona ble expectation of privacy.
Attempts by agents of the state to ac cess that information cons titute an infringement of
this reasonable ex pectation of privacy. Where one has a reasonable expect ation of privacy
at law, an infringement of that rea sonable expectation amounts to a “search” a s that term
has been interpreted under sec tion 8.8 e search must then be “reasonable” in order to
be upheld as constitutional. is much is clear.
1 Customs Act, RSC 1985, c 1 (2d Supp), ss 13, 99, 153.1.
2 Jack Julian, “Alain Philippon Phone Password Case May Meet Ch arter Challenge Conditions”, CBC
News (7 March 2015), online: <http://www.cbc.ca/news/canada/nova-scotia/alain-philippon-
phone-password-case-may-meet-charter-challenge-conditions-1.2985694> archived at
3 Steve Bruce, “Quebec Man to Fight Customs Charge of Hinderi ng”, The Chronicle Herald (5
November 2015), online: 17-quebec-man-to-
ght-customs-charge-of-hindering> archived at .
4 Customs Act, supra note 1, s 160.1.
5 See e.g. R v Buss, 2014 BCPC 16, 301 CRR (2d) 309 [Buss]. In this case, the accused gave border
agents the passwords to his comp uter and cell phone, subsequently claim ing that this violated
the principle against self-incrimination under section 7 of the Charter of Rights and Freedoms.
6 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to
the Canada Act 1982 (UK), 1982, c 11 [Charter].
8 Stephen Coughlan, Criminal Procedure, 2nd ed (Toronto: Irwin Law, 2012) at 66.
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