The police can seize items of your property and conduct searches as part of their investigation. If they didn’t have this power, you can imagine that it would make their ability to do their job much more difficult—and, at times, almost impossible. There are, however, specific procedures that officers must follow, and they must work within certain parameters so they do not infringe on your rights. You have a constitutional right to be safe from an unreasonable search or seizure. While the police may have the ability to seize and search your phone, you may wonder whether they also have the ability to compel you to unlock your phone. Do you have to assist them with their investigation? At what point does their power go too far?
Section 487.02 of the Criminal Code allows judicial officials who have authorized or issued a warrant to also order someone to provide assistance “if the person’s assistance may reasonably be considered to be required to give effect to the authorization or warrant.” In theory, this means that if a search warrant is issued, then you can be ordered to assist in a way that makes the search meaningful i.e. you can be asked to unlock your phone, if your phone is the focus of the search.
But not so fast. In practice, it is not as straightforward. Now that smartphones have become prevalent in our daily lives, the courts have begun to deal with this issue over the last few years.
In 2017, the Ontario Court of Justice heard R. v. Talbot. Mr. Talbot was charged with second degree murder and his phone was seized in order for it to undergo a forensic search. His phone was protected, and the police could not access information on the phone without risking its erasure. The Crown then brought an assistance order application under section 487.02 of the Criminal Code to compel Mr. Talbot to provide the screen lock passcode in the form of a “swipe pattern.” Justice Applegate first considered whether the “person” referred to in section 487.02 includes an accused person or only refers to third parties and non-targets of investigations being compelled to assist. Justice Applegate was not prepared to find that accused persons are excluded from this section. Parliament could have specifically excluded them but chose not to, leaving the door open for accused persons to be the subject of an assistance order in the future.
That being said, Justice Applegate recognized that the Canadian Charter of Rights and Freedoms factors into the analysis of whether or not to issue an assistance order. The presiding judicial official must consider whether it is in the best interests of the administration of justice to issue it; this consideration involves the balancing of the accused’s rights to privacy and the state’s interest in investigating criminal activity, as well as the potential breach of Charter rights. Ultimately, it was found that compelling Mr. Talbot to provide his “swipe pattern” would infringe on his section 7 Charter right to life, liberty, and security of the person in a way that was not in accordance with the principles of fundamental justice. The order would contravene his right to silence. He would not be able to choose whether he wanted to communicate with police; he would be forced to do so with the threat of additional charges if he did not participate. More broadly, it would breach his right against self-incrimination; he would be asked to communicate information against his will in order to help the state with his own prosecution. It should be noted that the Crown had offered “use immunity” to protect Mr. Talbot’s rights with respect to the swipe pattern itself, the fact that it unlocked the phone, his connection to the swipe pattern, and any statements made while providing the pattern to police. While Justice Applegate acknowledged that certain immunity could alleviate Charter violations in these situations, he rejected the immunity offered by the Crown as a safeguard. It did not protect against the use of any potential incriminating information on the phone—it only applied to Mr. Talbot’s connection to the phone. That was simply not enough to ensure that Mr. Talbot’s rights were respected.
A second case, R. v. Shergill, appeared in the Ontario Court of Justice the following year with a judgment rendered in early 2019. Mr. Shergill was charged with multiple sexual and child pornography offences. A search warrant was issued for his phone, but the phone was password-protected. Similar to Talbot, the police couldn’t access the information on the phone without risking its destruction. Like Justice Applegate, Justice Downes found that section 487.02 did not preclude an accused from being the subject of an assistance order. Justice Downes also found that there was a violation of section 7 of the Charter. Mr. Shergill’s liberty would be deprived in a way that is not in accordance with the right against self-incrimination and the right to silence. Revealing his phone’s password would have a significant incriminatory effect on Mr. Shergill; he would be a target of an allegation assisting the state in proving the allegation. He could be providing 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” (para. 39). Mr. Shergill would not be afforded the choice of whether or not to speak to police. The assistance order was not granted.
As we continue to rely more heavily on our phones and other electronic devices to communicate and live our lives, there will likely be more cases like these winding their way through the courts. As it currently stands, the courts have left open the possibility that an accused could be compelled to assist with an investigation. As Justice Downs acknowledged in Shergill, if there was an outright prohibition on an accused’s assistance, DNA warrants, breathalyzers, and fingerprinting could not exist. Yet the context of unlocking cell phones is particularly troublesome, because it involves compelled speech. There must be adequate protections to an accused’s Charter rights in order to justify putting them in such a precarious position.