Is Password Compulsion Constitutional in Canada? Two Views

Abstract

The recent Ontario Court of Justice decision in R v Shergill is the first case in Canada to deal directly with the constitutionality of password compulsion. The Crown sought to use the 'assistance order' power in section 487.02 of the Criminal Code to obtain an order compelling the accused to open his locked phone. The defence argued that this would violate the accused's right to silence and right against self-incrimination. Justice Downes agreed with the accused, setting out a detailed set of reasons password or plaintext compulsion violates the Charter. We provide an overview and brief critique of these reasons, then turn in part II to a summary of the argument in favour of constitutionality set out by Steven Penney and Dylan Gibbs, along with a brief critique. We conclude with suggestions for reform of the Code to address concerns about lawful access to encrypted data.

Keywords: password compulsion, constitutionality, right to silence, self-incrimination, charter, encryption, device data