Is Password Compulsion Constitutional in Canada? Two Views

Robert Diab and Marshall Putnam, "Is Password Compulsion Constitutional in Canada? Two Views" (2019) The Advocate (Forthcoming)

12 Pages Posted: 11 Jun 2019 Last revised: 10 Jun 2020

See all articles by Robert Diab

Robert Diab

Thompson Rivers University - Faculty of Law

Marshall Putnam

Thompson Rivers University

Date Written: May 23, 2019

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

Suggested Citation

Diab, Robert and Putnam, Marshall, Is Password Compulsion Constitutional in Canada? Two Views (May 23, 2019). Robert Diab and Marshall Putnam, "Is Password Compulsion Constitutional in Canada? Two Views" (2019) The Advocate (Forthcoming), Available at SSRN: https://ssrn.com/abstract=3393181

Robert Diab (Contact Author)

Thompson Rivers University - Faculty of Law ( email )

900 McGill Road
Kamloops, British Columbia
Canada

Marshall Putnam

Thompson Rivers University ( email )

900 McGill Road
Kamloops, British Columbia
Canada

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