Feb 25, 2019

R. v. Shergill, 2019 ONCJ 54 - Summary

R. v. Shergill, 2019 ONCJ 54 (CanLII)

The police obtained a warrant to search a cellphone, which was password-protected. To try to circumvent this, since they considered they could not access its content while ensuring it would not be destroyed, they applied for an assistance order, under which the phone's owner (also the police's suspect) would have to provide their password.

After considering that the Court had the power to make such an order [par. 8], Justice Philip Downes nonetheless exercised his discretion to decline the application given that it would amount to a Charter breach [par. 10]. Compelling the target of a search to divulge their password would infringe their liberty in a manner contrary to principles of fundamental justice, more precisely the protection against self-incrimination [explained at. par. 19-20] and the right to silence [explained at par. 21-22]. The question was whether some form of immunity could balance the infringement [par. 24 & 26]. Indeed, "[u]ltimately, whether the principles of fundamental justice allow for the order sought is, the Supreme Court has said, a question of balancing the rights of the individual with the interests of society as a whole." [par. 43]

The compelled password could not be characterised as anything but testimonial:
"[42] In the same vein, I reject the implication that what is sought from [the target] is an act rather than a form of speech. What the police really want is for [the target] to reveal the password currently buried only in his mind. That is something which, in the language of one U.S. commentator, “[does] not exist outside a person’s mind, so producing [it] would require compelling the creation of a physical version, and it is this compelled creation that makes the response testimonial.” To construe the unlocking of the device as anything other than a manifestation of compelled speech is not, in my view, a realistic way of looking at what would be required of him."

Here, "the data on the [phone], which the police are only able to access and obtain if [the target] provides his password, 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" [par. 38], and "nothing short of full derivative use immunity could mitigate the s.7 violation in this case." [par. 40] As such, Justice Downes was "simply not persuaded that the order sought can issue without fundamentally breaching [the target]’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." [par. 51]