In declining to issue an assistance order compelling an accused to provide the password to his smartphone, Justice Downes’ decision in R v. Shergill , 2019 ONCJ 54 establishes that, at least in some cases, compelling the production of a password for the purposes of building a case against an individual violates the right against self incrimination.
R v. Shergill is another step in the unique search and seizure dynamics involved in the acquisition of evidence from cell phones. Password-protected smart phones in particular present unique challenges to the police and to privacy law as it has developed under the bricks-and-mortar world of the Charter in the last ten years. As the Court commented in R. v. Fearon, 2014 SCC 77 another earlier seminal smartphone search case, “It is well settled that the search of cell phones, like the search of computers, implicates important privacy interests which are different in both nature and extent from the search of other ‘places.’”
Mr. Shergill was charged with a variety of sexual and child pornographic offences. Police were successful in obtaining a search warrant under section 487 of the Criminal Code to search his smartphone. But as the phone was password protected, they were not able to access its contents. It was uncontradicted that the police don’t currently have any way to access the cellphone’s contents without the assistance of the accused. Attempting to access the device without a password would risk destroying the evidence.
The accused opposed the assistance order, arguing he would be forced to participate in the investigation against him. He argued that this would be an infringement of his Charter liberty interests in a manner that did not accord with the principles of fundamental justice. His right to silence and protection against self incrimination would be compromised.
The Crown argued that this request for an assistance order did not raise Charter concerns, but was instead a matter of mere practicality. The Crown submitted that the proposed assistance order did not engage the principle against self-incrimination because it 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 a grant of use immunity over Mr. Shergill’s knowledge of the password.
Justice Downes ultimately declined to grant the assistance order.
Justice Downes begins his decision recognizing that “nothing in the ‘grammatical and ordinary sense’ or the statutory context of s.487.02” precludes an assistance order against the accused to assist in their own case. He also acknowledges that the police have no other way of accessing the information stored in the password-protected device.
In applying the three part test established by the Supreme Court of Canada in R v. White, 1999 CanLII 689 (SCC), to determine a section 7 violation, Justice Downes concludes that the deprivation of the accused’s liberty interests are not in accordance with the principles of fundamental justice. The relevant principles of fundamental justice were agreed to be protection against self-incrimination and right to silence.
The controversy between the parties is two part: first, whether a password creates the evidence and second, whether partial or full immunity protection is required as a result.
The Crown argued that the password has no “incriminatory value or effect.” It is not the password that has any evidentiary value but the contents of the cellphone. The evidence is already created, the password is merely the key to unlocking the door. In providing the password nothing new is created, rather access is provided.
Justice Downes sides with the accused, concluding that the password brings the evidence into existence. Without the password the officers would not be able to access the information. “As a practical matter, without the assistance order, the evidence would never come into the hands of the police.” In compelling disclosure of a password it forces the accused to provide something that only exists in their mind.
Justice Downes states that this evidence “is derivative evidence and must be protected by derivative use immunity in order for the proposed assistance order not to fall foul of section 7 of the Charter.” Derivative evidence is any evidence arising from compelled disclosure. This follows Justice Iacobucci’s (as he then was) reasoning in R. v. S. (R. J.) noting that:
Although S. (R.J.) did not resolve this particular issue, it seems clear that if the predominant purpose of the state action is to incriminate the person who is being compelled to speak, then the violation will at least be harder to justify through the guarantee of some form of immunity.
In his analysis, Justice Downes distinguishes utterances or compelled speech from other compelled evidence such as DNA, fingerprints, breathalyzers which are all similarly requiring the accused to, in some way or another, participate in evidence gathering against his own case. He suggests that some compelled cooperation is justifiable, particularly when paired with “prophylactic measures such as the right to counsel or use immunity.”
Key Takeaways and Comments
Although this case was concerned with a smartphone, Justice Downes’ use of the word “device” to describe the phone paves the way for a broader application of this decision. It is reasonably conceivable that the logic used in this case, that compelling someone to disclose their password breaches their constitutional rights, would be expanded to apply to other password protected devices such as computers and laptops.
It is unclear how subsequent decisions will interpret alternatives to traditional passwords. In concluding that a password is somehow different than other “self-incriminatory compulsion[s]” such as fingerprinting, this decision leaves open the question of whether other biological mechanisms used to lock phones would be compellable. For example, would the assistance order be granted if instead of a password the cellphone used facial recognition or fingerprints to unlock? It is unclear as these forms of encryption straddle the line of what is compellable as per Justice Downes analysis.
Towards the end of his analysis, Justice Downes acknowledges that
the current digital landscape as it relates to effective law enforcement and the protection of privacy presents many challenges. He observes that without the minimal assistance of the accused, the state will be entirely frustrated in its desire to gather potentially critical evidence and “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. “
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