Aug 1, 2018

R. v. Talbot, 2017 ONCJ 814 - Summary

R. v. Talbot, 2017 ONCJ 814 (CanLII)

In this decision, Justice Applegate of the Ontario Court of Justice grappled with the request by the State, having obtained a warrant to search a cellphone but having been unable to crack its security measures, to force a suspect to input his motion password to open it under s. 487.02 of the Criminal Code, as assistance to the execution of the already granted warrant.

At the warrant stage, ss. 11(c) and 13 of the Canadian Charter do not apply: there is no witness. But could such an order infringe the right against self-incrimination, or to silence, protected by s. 7 of the Canadian Charter? This is the Court's conclusion (par. 38).

The Court relies on R. c. Boudreau-Fontaine, 2010 QCCA 1108, which dealt amongst other things with a warrant forcing the suspect to give his passwords to the police (par. 31). The Québec Court of Appeal had found that this condition could not be added to a warrant, and was contrary to the (then accused) suspect's rights and to the principles of criminal law. It also does a useful review of the case law in the United States of America (par. 33-35).

Of note, given the distinction made in the USA "between the physical act of being compelled to provide a fingerprint and the mental act of being compelled to provide a decryption code or password to unlock a cell phone" (par. 35), is the Court's remark that "the nature of the compelled participation is particularly intrusive when one considers that the accused is being forced to actively participate by communicating information to the police that solely exists in his head as opposed to compelling a person to passively provide some physical characteristics as part of an investigation (ie. DNA samples, fingerprints, breath samples, etc)" (par. 38). Without addressing this issue, the Court's comment seems to align with the USA approach. We would disagree and oppose even orders that would force a suspect or an accused to unlock a device with no mental participation. They might infringe s. 7 less, but it does not make it constitutional. Just as we would oppose an order forcing a suspect or an accused to give a physical key to the State: they can get a warrant to find the key, and to break the lock, but they should not get a warrant to compel the suspect or accused to participate in their execution, only not to interfere. They might prefer to participate, to avoid the lock being broken down, but that should be their choice.

The State application for leave to appeal to the Supreme Court was recently dismissed on the technical reason that the Court did not have jurisdiction to hear the appeal. With the preeminence of cellphones, and the ruling in R. v. Fearon, 2014 SCC 77, that the common law power of search incident to arrest can extend to their content, the issue will likely still make its way there again in the future.