It strikes me that this is probably a misinterpretation by the CBSA in the first place, because if you look at paragraph 99(1)(a), you see that it doesn't really make sense that it would apply to cellphones at all, but you can look at paragraph 99(1)(f), which would probably be better grounds for searching any goods, and that actually does set out a “reasonable grounds” criteria.
You don't have it in front of you, but if both the CCLA and the BCCLA could look at this and assess if paragraph 99(1)(f) actually makes more sense, would you be comfortable with that? It does set out reasonable grounds in the act. Maybe we could, rather than rewriting things, just specify that this would be the source of search. Paragraph 99(1)(a) doesn't make sense to me at all. For example, it says to “take samples of imported goods in reasonable amounts”. How would that ever apply to a cellphone that has not been properly imported?
My second question is related to the password issue. In the guidance, it says that officers may “request the password” and that it's “not to be sought to gain access to any type of account...stored on-line”. In fact, the indication is that is should go on airplane mode or something like that. It also says that if the “traveller refuses to provide a password...the device...may be detained”. I understand that there is at least one case where there was an obstruction charge and an individual pleaded guilty and paid $500, although I do note that this does say something rather bizarre, which is that “[u]ntil further instructions”, they suggest not arresting a traveller for obstruction and maybe charging him after the fact.
What in the BCCLA's view would be appropriate language with respect to password protection at the border, if not this?