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Forced Unlocking Amounts to Self-Incrimination

April 4, 2019

Court refuses to compel accused person to unlock phone

In R. v. Shergill, Justice Philip Downes of the Ontario Court of Justice heard an application by the Crown which raised the thorny issue of whether accused persons can be compelled to “unlock” password-protected electronic devices. The accused was charged with a variety of sexual and child pornography offences and the police seized his cell phone incident to arrest. Realizing they had no technology that would allow them to open the phone without possibly destroying its contents, the police applied for a search warrant along with an “assistance order” under s. 427 of the Criminal Code. This section provides that a judge who issues a warrant “may order a person to provide assistance, if the person’s assistance may reasonably be considered to be required to give effect to the authorization or warrant.” Unusually, the application did not proceed ex parte and both the Crown and the accused made submissions.

The Crown argued that the accused’s Charter rights were not engaged by the issuance of the assistance order, because it was a matter of “mere practicality.” Centrally, the principle against self-incrimination was not engaged because the order “only compels Mr. Shergill to provide access to, and not create, material the police are judicially authorized to examine, and because any self-incrimination concerns are met by the grant of use immunity over Mr. Shergill’s knowledge of the password.” The accused argued that the principle against self-incrimination was, indeed, engaged because the order would compel him to produce information that only existed in his mind, “for the purpose of assisting [the police] in obtaining potentially incriminating evidence against him”—thus violating his right to silence and the protection against self-incrimination under s. 7 of the Charter.

Justice Downes sided with the accused. First, the principle against self-incrimination was engaged:

The Crown suggests that Mr. Shergill’s s. 7 interests are “not engaged” or minimally compromised because what is sought to be compelled from him has no incriminatory value or effect. All the assistance order seeks is a password, the content of which is of no evidentiary value. Indeed, the Crown says that the police need not even be aware of the actual password as long as Mr. Shergill somehow unlocks the phone without actually touching it himself.

In my view, however, the protection against self-incrimination can retain its force even where the content of the compelled communication is of no intrinsic evidentiary value. This is particularly so where, as here, that communication is essential to the state’s ability to access the evidence which they are “really after.” To paraphrase the Court in Reeves, to focus exclusively on the incriminatory potential of the password neglects the significant incriminatory effect that revealing the password has on Mr. Shergill. As the Supreme Court held in White:

The protection afforded by the principle against self-incrimination does not vary based upon the relative importance of the self-incriminatory information sought to be used. If s. 7 is engaged by the circumstances surrounding the admission into evidence of a compelled statement, the concern with self-incrimination applies in relation to all of the information transmitted in the compelled statement. Section 7 is violated and that is the end of the analysis, subject to issues relating to s. 24(1) of the Charter. [footnotes omitted]

Even more important, the judge found, was the right to silence under s. 11(b) of the Charter:

In my view, the more significant principle of fundamental justice at stake is the right to silence. This right emerged as a component of the protection against self-incrimination in R. v. Hebert in which McLachlin J. (as she then was), held:

If the Charter guarantees against self-incrimination at trial are to be given their full effect, an effective right of choice as to whether to make a statement must exist at the pre-trial stage… the right to silence of a detained person under s. 7 of the Charter must be broad enough to accord to the detained person a free choice on the matter of whether to speak to the authorities or to remain silent.

McLachlin J. also reaffirmed the Court’s prior holding that the right to silence was “a well-settled principle that has for generations been part of the basic tenets of our law.” 

The “common theme” underlying the right to silence is “the idea that a person in the power of the state in the course of the criminal process has the right to choose whether to speak to the police or remain silent.” In tracing the history of the right, McLachlin J. referred to an “array of distinguished Canadian jurists who recognized the importance of the suspect’s freedom to choose whether to give a statement to the police or not” and described the essence of the right to silence as the “notion that the person whose freedom is placed in question by the judicial process must be given the choice of whether to speak to the authorities or not.” Finally, Hebert held that s. 7 provides “a positive right to make a free choice as to whether to remain silent or speak to the authorities.”

The pre-trial right to silence is a concept which, as Iacobucci held in R.J.S., has been “elevated to the status of a constitutional right.”[footnotes omitted]

The court also rejected the Crown’s argument that the accused’s rights were sufficiently protected by providing use immunity for his knowledge of the contents of his phone and the password:

As a practical matter, without the assistance order, the evidence would never come into the hands of the police. In that sense it strikes me as somewhat artificial to say that the data on the Blackberry is evidence which, in the language of D’Amour, “exist[s] prior to, and independent of, any state compulsion.” Rather, it is evidence which, as far as the police are concerned, is only “brought into existence by the exercise of compulsion by the state.”

[….]

Fundamentally, realistically and in any practical sense, granting this application would amount to a court order that Mr. Shergill provide information which is potentially crucial to the success of any prosecution against him, and which could not be obtained without the compelled disclosure of what currently exists only in his mind. It strikes at the heart of what the Supreme Court has held to be a foundational tenet of Canadian criminal law, namely, that an accused person cannot be compelled to speak to the police and thereby assist them in gathering evidence against him or herself.

In my view nothing short of full derivative use immunity could mitigate the s.7 violation in this case.

The Court then discussed some of the challenges that law enforcement are facing in light of new technology and encryption in particular. Though there is always a compelling public interest in the investigation and prosecution of crimes, the final balancing came down on the side of the accused's liberty interests under s. 7 of the Charter:

I accept that the current digital landscape as it relates to effective law enforcement and the protection of privacy presents many challenges. It may be that a different approach to this issue is warranted, whether through legislative initiatives or modifications to what I see as jurisprudence which is binding on me. But on my best application of controlling authority, I am simply not persuaded that the order sought can issue without fundamentally breaching Mr. Shergill’s s. 7 liberty interests, a breach which would not be in accordance with the principle of fundamental justice which says that he has the right to remain silent in the investigative context.

The search warrant was issued but the assistance order was denied.

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