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Why did Canandian immigration search my phone?

Jamaica To Canada

Wednesday, May 22, 2019

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Dear Mr Brown:

I landed at the airport in Toronto and the immigration officer searched my telephone. Is that considered a breach of privacy? What can be done about it?

– TC

Dear TC:

Canadian immigration law seeks, amongst other things, the protection of the health and safety of Canadians and to maintain the security of the Canadian society. The law, therefore, provides officers with the discretionary authority or power to arrest and detain individuals and property.

A warrant may be issued for the arrest and detention of a permanent resident or a foreign national for which there are reasonable grounds to believe that he or she is:

• inadmissible, such as on security grounds or for violating human or international rights; and

• is a danger to the public; or

• is unlikely to appear for examination at an admissibility hearing or removal from Canada.

A permanent resident or a foreign national may, on entry into Canada, be detained if an officer:

• considers it necessary to do so in order for an examination to be completed; or

• has reasonable grounds to suspect that the permanent resident or foreign national is inadmissible on grounds of security or for violating human or international rights.

Smartphones

Critics are concerned about the potential breaches of privacy rights of travellers in the context of the search of smartphones, which may contain personal, sensitive or confidential data, without a warrant.

There was a recently reported case in which a Canadian lawyer returned to Canada from a trip and an officer demanded the passwords to his phone and laptop. The lawyer refused the request on the basis of the devices containing confidential information protected by solicitor-client privilege. Consequently, the devices were confiscated to be sent to a government lab in which attempts would be made to crack the passwords to search his files.

The Canada Border Services Agency (CBSA) has the right to search electronic devices without a warrant at the border or port of entry for evidence of customs-related offences, in the same manner as a search of luggage. If travellers refuse to provide their passwords, officers can seize their devices.

The laws governing CBSA searches have existed for decades. As such, there is concern over whether the laws are outdated in applying them to digital devices. However, officers can uncover evidence of a customs-related offence — which can include possessing prohibited material or undeclared goods, and money laundering. CBSA officers are directed to disable any Internet connection and only examine content that is already stored on a device, which may be deemed reasonable and necessary to keep the border safe. CBSA officers are trained to conduct all border examinations with as much respect for privacy as possible.

In response to your query, I can advise that a complaint may be submitted to the CBSA, if you believe that your rights were violated. However, as I have outlined, the CBSA does have the right to examine digital devices.

Please visit JAMAICA2CANADA.COM for additional information on Canadian permanent residence programmes, including express entry, the study and work programme, visas or appeals, etc.

– Antonn Brown, BA, (Hons), LLB, MSc, RCIC, is an immigration counsel and an accredited Canadian education agent of JAMAICA2CANADA.COM — a Canadian immigration & education firm in Kingston. Send questions/comments to jamaica2canada@gmail.com.


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