ONTARIO COURT OF JUSTICE
Ottawa, ON
IN THE MATTER OF an Application for Biometrics Scanning as part of a General Warrant
Before Justice Trevor A. Brown
Endorsement released on March 16, 2026
1This is a brief endorsement on an Application made in writing on March 13, 2026, by xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx for a Search Warrant further to s. 487 of the Criminal Code, for a General Warrant further to s. 487.01 of the Code, and for a Sealing Order further to s. 487.3 of the Code.
2In short, the Applicant in this case seeks, amongst other things, authorization to compel the Target to participate in defeating password protection or encryption of any digital devices seized from them, by providing a fingerprint or thumbprint to unlock the device or by posing for the camera on the device in order for the facial recognition software to unlock it.
3Given the ubiquitous nature of digital devices like cellphones, the common use of password protection and encryption on those devices, and the wealth of information available to law enforcement when they come into possession of such devices, there is clear precedential value in what is being sought by the Applicant. Regular resort to biometrics scanning provisions would have far-reaching implications for the intersection of law enforcement, privacy, and right to silence/self-incrimination concerns. Given the novel issue raised by the biometrics scanning provision of the Order sought and its potential precedential value, I have taken the unusual step of providing a detailed endorsement on this Application.
4These are my reasons for refusing the request for authorization under the general warrant provisions relating to biometrics scanning. The remaining authorizations sought, including the Search Warrant, the other provisions of the General Warrant, and the Sealing Order, will be granted.
5As set out in the ITO, it is common these days for digital cellular devices like iPhones to be password protected and to give the user of the device the option of unlocking the device through a fingerprint, thumbprint or facial recognition software as an alternative to manually entering a password on the device.
6In aid of a general warrant to seize any digital devices found on or nearby the Target, including any cellular telephones, the Affiant seeks an order authorizing the use of biometric scanning to facilitate the defeating of any password protection or encryption on any such seized devices.
7If a fingerprint lock is present on the device, the police would do so by using whatever “minimal force” is required to place the Target’s finger or thumb over any biometric sensor on the device to unlock it.
8If a facial recognition tool is present on the device, the police would do so by using whatever “minimal force” is required to point the camera of the device at the Target’s face and unlock the device.
9The police would only take these steps after providing the opportunity for the Target to consult counsel, and only after first determining that the device is in fact locked or encrypted. They also propose informing the Target of their intention to ask the Target to simply provide the password to them, and then give the Target the opportunity to consult counsel about this request for consent.
10If the Target provides their password to unlock the device, and/or if the biometrics scanning is successful in unlocking the device, the police would provide “use immunity” to the Target. In other words, the police guarantee that the fact that the Target is able to unlock or decrypt any of the devices seized during the execution of the general warrant will not be used against them in this investigation or in any subsequent investigation or proceeding.
11The live concern arising from any form of compelled password production from a Target is self-incrimination. As will be discussed below, in relation to encryption, self-incrimination and right to silence concerns are engaged and have been a significant barrier for any law enforcement action on compelled production of access to data.
12In R. c. Boudreau-Fontaine, 2010 QCCA 1108, the police searched a vehicle and located a laptop and other devices. They obtained a warrant for the devices which contained a term requiring the accused to provide his password for the laptop to police. The accused complied with the warrant and gave his password to the police. The Court of Appeal for Quebec rejected the notion that an accused person could be required to participate in the police investigation and to give crucial information, contrary to his right against self-incrimination.
13In both R. v. Talbot, 2017 ONCJ 814, and R. v. Shergill, 2019 ONCJ 54, my colleagues in the Ontario Court of Justice also concluded that compelled participation of a suspect in accessing their own data violated the protection against self-incrimination and the right to silence enshrined in s. 7 of the Charter. Both of these cases involved applications for assistance orders directed at the Targets in relation to devices that police were lawfully entitled to seize and access through properly issued warrants. In those cases, the “use immunity” provisions contained in the warrants sought were insufficient to overcome the right to silence and self-incrimination problems that were engaged by requiring the accused to participate in building the cases against them.
14In Shergill, the Court observed that the accused in that case would, if the warrant were granted, be required in effect to “speak his mind” to the police. His assistance would only come about through an utterance conveying a thought in his head. This engaged an element of testimonial compulsion. The Court similarly rejected the suggestion that what was being sought from Mr. Shergill was really an act rather than a form of speech. What the police really wanted was Mr. Shergill to reveal the password currently buried only in his mind. Requiring him to produce it would require compelling the creation of a physical version, and it is this compelled creation that rendered the giving of the password testimonial. To construe the unlocking of the device as anything other than a manifestation of compelled speech would not be a realistic way of looking at what would be required of the accused in that case.
15I have carefully considered the Affiant’s assertion that the proposed biometrics scan warrant does not compel the Target to provide any passwords, passcodes or swipe patterns, and instead requires only their “passive participation” by involving the use of minimal force and by using their physical features only to unlock the digital devices, the contents of which the police would have been authorized to examine.
16I disagree with this assertion, as it involves a difference without a distinction. Properly considered, fingerprint or thumbprint locks and facial recognition locks on digital devices are all shortcuts of the same thing: the deliberate input of a password that otherwise exists only in the password holder’s mind. Whether being required to utter the password itself to authorities, to input manually the password on the device, or to provide their finger, thumb or face to the police to assist in unlocking the device, these are all part and parcel of the same testimonial compulsion. They all compel the Target to participate in their own incrimination by providing the information held only by them. This, as the jurisprudence to date has made clear, is unconstitutional.
17The proposed biometric scanning sought in the Order is tantamount to an Order compelling the Target to provide the password from their own mouth, and in this respect is unlawful. As such, I must deny this request.
18Given this finding, the biometric scanning request set out in paragraphs xxx-xxx of the Information to Obtain and paragraph xx of the draft Order are denied.
March 16, 2026
Signed: Justice Trevor A. Brown