Court File and Parties
Ontario Court of Justice
Date: 2017-11-24
Court File No.: Barrie
RE: APPLICATION FOR A s. 487 WARRANT AND s. 487.02 ASSISTANCE ORDER FOR ERIC TALBOT
Before: Justice Cecile Applegate
Heard on: November 2, 2017
Reasons released on: November 24, 2017
Counsel:
- M. Flosman, M. Lai and D. Chronopoulos, counsel for the Crown
- M. Cremer, counsel for the accused Eric Talbot
APPLEGATE J.:
Background
[1] On June 3, 2016, Eric Talbot was arrested for 2nd degree murder. A BLU cell phone was located on his person. On August 30, 2016, the police obtained a s. 487 Criminal Code search warrant authorizing them to seize and forensically examine Mr. Talbot's cell phone.
[2] On December 15, 2016, the police were advised that Mr. Talbot's cell phone was locked using a "swipe pattern" and that attempts to bypass the cell phone's security had failed. The only other possible method to enter the phone was to use a "chip-off process". This procedure offered no guarantees and risked causing the permanent loss of the data and potential evidence from the cell phone.
[3] On April 19, 2017, the Crown brought an ex parte application for a s. 487 Criminal Code search warrant and a s. 487.02 assistance order. The assistance order would require Mr. Talbot to assist the police in accessing his cell phone by providing the screen lock passcodes or PIN codes.
[4] On May 9, 2017, I granted the order to search Mr. Talbot's cell phone and denied the assistance order on a without prejudice basis allowing the Crown to re-apply upon reasonable notice to Mr. Talbot's counsel and both parties either providing written submissions or setting a date for a hearing on the matter. Notice was subsequently provided to counsel, including unsealing the materials in support of the ex parte application, and counsel argued the matter before me on November 2, 2017. Prior to that date, Mr. Talbot was committed to stand trial on 2nd degree murder following his preliminary inquiry.
Position of the Parties
[5] The Crown argues that Mr. Talbot's assistance "may reasonably be considered to be required to give effect" to the search warrant for his BLU cell phone. Unlike other sections in the Criminal Code, s. 487.02 does not require that Mr. Talbot's assistance be a last resort or that the police exhaust all other avenues of investigation. The Crown concedes that Mr. Talbot has a reasonable expectation of privacy in the data of the BLU cell phone, but that there is no informational content in the swipe pattern that unlocks the cell phone. The court has already judicially authorized interference with Mr. Talbot's privacy interests in the contents of the cell phone by authorizing the search warrant. Any further potential Charter interference can be remedied by the court imposing conditions of use immunity as it pertains to the details of the swipe pattern, the fact that it unlocks the cell phone, Mr. Talbot's connection to the swipe pattern, and any statements that Mr. Talbot may make during the course of turning over his swipe pattern to police.
[6] The defence submits that the assistance order compels Mr. Talbot to be used as an instrument of the state in order to obtain potentially incriminating evidence to further bolster the case against him. The swipe pattern is a product of Mr. Talbot's thought process. It provides the gateway to stored information which is intensely personal and would reveal intimate details about Mr. Talbot's life. The defence argues that s. 487.02 was never intended to apply to accused persons, but rather to third parties and non-targets of police investigations. Further, if it did apply to accused persons, compelling accused to divulge this information would violate their right to silence, right against self-incrimination, and right to be presumed innocent contrary to ss. 7 and 11(d) of the Charter.
Legal Issues
Issue #1: Does s. 487.02 of the Criminal Code apply to accused persons?
[7] Section 487.02 of the Criminal Code states:
"If an authorization is given under section 184.2, 184.3, 186 or 188 or a warrant is issued under this Act, the judge or justice who gives the authorization or issues the warrant may order a person to provide assistance, if the person's assistance may reasonably be considered to be required to give effect to the authorization or warrant."
[8] The word "person" is not defined in the Criminal Code. The Crown points out that it is a word that is used repeatedly throughout the Criminal Code and is consistently referenced in the offence sections as meaning the accused person (ie. "a person who commits…"). Section 487.02 does not place any limitations on the word "person" indicating that the accused is excluded from consideration as in other sections of the Criminal Code. For example, s. 487.012 excludes a "person who is under investigation" or other sections will offer immunity against self-incriminations such as s. 487.0196.
Parliamentary Debates and Committee Hearings Regarding the Enactment of s. 487.02
[9] In attempting to determine whether the legislative intent was to include accused persons in s. 487.02, the parliamentary debates provide little guidance on this issue. The following comments, however, do give some insights into the interests considered at the time:
In explaining the proposed amendments to the Criminal Code, the Honourable Perrin Beatty (Minister of Justice) described their purpose: "….second, to provide for warrant procedure for police and others to intercept communications with the consent of a participant to gather evidence or information….; fourth, to provide protection from civil or criminal liability for individuals assisting in the execution of authorizations or warrants; fifth, to provide for warrants and orders to engage in activities or obtain information or co-operation which would otherwise constitute an unreasonable search or seizure…" And, further "[t]he primary purpose of these amendments is to permit the use of technology by police forces in the performance of their duties, but only in a way that does not contravene the Canadian Charter of Rights and Freedoms": House of Common Debates, February 23, 1993 at p. 16492;
In addition: "…it allows judges to issue similar authorization in other circumstances where it is clear that the request for authorization meets the tests prescribed in the charter" and "[a]s well, authorized public agents and others who assist police and undercover agents, for instance landlords who permit entry into a residence, would be afforded protection from civil and criminal liability. This is meant to prevent litigation chill from deterring law enforcement": House of Common Debates, February 26, 1993 at p. 16557; and
In reviewing the proposed legislation, a member of the Senate alluded to the potential involvement of the accused in situations where they are compelled to assist the police with respect to searching computers. In particular, one senator queried whether that amounted to asking the person to "commit some sort of self-incrimination". The Senior Counsel from the Criminal Law Policy Section of the Department of Justice responded "if it is the accused person, that might be an issue, and the accused person could probably validly refuse to cooperate". To be clear, this was not specifically regarding s. 487.02 but a provision pertaining to persons in charge of a computer system: Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, April 21, 1997 at pp 60:24 – 60:25.
[10] The limited comments pertaining to the protection from civil or criminal liability and concerns over self-incrimination certainly seem to suggest that an accused person was not anticipated to be the person assisting the police in the proposed provision. On the other hand, there is no indication that accused persons were to be specifically excluded. Most importantly, however, it is very clear that the proposed legislation's compliance with the Charter was a significant factor in adopting it.
Canadian Jurisprudence
[11] There do not appear to be any reported decisions where an accused person or a target of an investigation was compelled to unlock their electronic device to assist the police pursuant to s. 487.02 of the Criminal Code. Traditionally, this section has been used to compel third parties to assist in the implementation of intercepts or gathering of particular documentary evidence sought by search warrants. Assistance orders have been considered in the following circumstances:
(a) Canada Post Corp v. Canada (AG), [1995] O.J. No. 126 (Gen Div): The assistance order tasked Canada Post employees with maintaining records for the police, and photocopying envelopes and packages already delivered to a particular party. In upholding the assistance order, the court stated that "It is within the letter and spirit of the section, it allows the police to utilize an investigative technique to obtain information which, if not authorized, might constitute an unreasonable search of a person's property. In my view, without the assistance order, the warrant would be reduced to words on paper; it would be devoid of any ability to accomplish its purpose. It would be useless as a device or investigative technique. The order for assistance breathes life and muscle into the frame of the second warrant"; ¶ 19;
(b) R. v. Pham, [1997] B.C.J. No. 2944 (C.A.), involved the issue of assistance orders pertaining to telephone company employees in wiretap situations; and
(c) R. v. National Post, [2004] O.J. No. 178 (SCJ), involved an assistance order that was issued to compel the editor of a newspaper to locate and turn over documents to the police which may have identified a journalist's confidential source. The court adopted Justice LaForme's comments in Re: General Warrant and Assistance Order April 4, 2003 stating: "Justice LaForme considered the 'novel and creative use of' the sections and the lack of judicial authority directly on point. He concluded that s. 487.01 is remedial in its character and should not be narrowly construed. 'Rather, it must be read with an appreciation for its purpose, namely, the enhancement of law enforcement and the protection of Charter values'. He concluded that ss. 487.01 and 487.02 can be used together to compel an unwilling non-target third party (emphasis added) to obtain things and produce them to the police for seizure": ¶ 34. In National Post, however, the court quashed the assistance order after balancing issues of freedom of expression, investigation of crime, Charter rights, and privilege.
Legal Analysis & Finding
[12] Both parties agree that the words of s. 487.02 of the Criminal Code are "… to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament": R. v. Conception, 2014 SCC 60, ¶ 14; R. v. Paterson, 2017 SCC 15, ¶ 31. The defence submits that, in addition, any statutory interpretation must be considered within the overall framework and legislative intent of the Charter.
[13] The Crown argues that the grammatical and ordinary sense of s. 487.02 does not place any limits on the word "person". Further, that if Parliament intended to exclude accused persons from s. 487.02 of the Criminal Code, it could have enacted it as it did for ss. 487.012 and 487.0196. Lastly, s. 487.02 gives the issuing justice the discretion to impose reasonable terms as may be appropriate including use immunity which would alleviate an accused's procedural or trial fairness concerns.
[14] The defence submits that the Crown's argument is too narrow and, in keeping with the principles of modern statutory interpretation, one must look at the wider statutory context. Assistance orders are used to assist the police with respect to the mechanics and implementation of intercepts and search warrants which traditionally has involved third parties and non-targets of investigations (ie. employees of Canada Post, banks, telephone companies, etc). This section was never intended to apply to accused persons particularly when one considers the Charter implications of an accused being compelled to assist the police.
[15] I am not prepared to find that accused persons are specifically excluded from being a "person" in s. 487.02 of the Criminal Code. As it did in other sections of Part XV of the Criminal Code, Parliament could have specifically excluded targets of investigations or accused persons but chose not to. In fact, the Senate discussions raised the concern of an accused incriminating himself with respect to preserving computer data and s. 487.012 was later enacted exempting targets of investigations. No such steps were taken with respect to s. 487.02. Finally, just because this section has traditionally been used for third parties or non-targets does not automatically exclude an accused person from consideration. As technology evolves, so does the law surrounding its use and access to it.
[16] In coming to this conclusion, I am mindful that Charter considerations are always part of the analysis when determining whether or not to issue a search warrant or an assistance order. One of the preconditions to issuing these orders is that the justice must be satisfied that it is in the best interests of the administration of justice to issue the warrant or the assistance order. This involves balancing the state's interest in investigation of crime and an individual's privacy rights.
Issue #2: Does the proposed assistance order violate Mr. Talbot's Charter rights?
[17] The proposed assistance order compels Mr. Talbot to provide any and all assistance necessary to enable the police to access his cell phone in accordance with certain terms and conditions. Some of the terms include: (a) using as much force as is necessary for the purpose of enforcing the order pursuant to s. 25 of the Criminal Code; (b) Mr. Talbot providing his passcode personally or through counsel either orally, in writing or by demonstration of the swipe pattern; (c) use immunity shall be granted regarding the fact Mr. Talbot provided the passcode and for the passcode itself except in the case where Mr. Talbot is non-compliant; and (d) Mr. Talbot will be advised that he could be charged with disobeying a court order or obstruct police if he fails to comply with the order.
Position of the Parties
[18] Both parties agree that ss. 11(c) and 13 of the Charter are not engaged as those sections pertain to an individual's testimonial rights.
[19] The Crown urges the court to consider any section 7 Charter issues in two categories: (a) the data on Mr. Talbot's phone which existed prior to and, independently of, any state compulsion; and (b) Mr. Talbot's production of the swipe pattern which compels access to material the police are judicially authorized to examine. The Crown submits that the assistance order does not engage the principle against self-incrimination because that material already exists and the police have judicial authority to examine it.
[20] In addition, the Crown argues that the proposed assistance order is minimally intrusive. It simply requires Mr. Talbot to move his finger across a cell phone screen or show the police how to do it – a moment in time and a minimal physical act. The Criminal Code contemplates far more intrusive orders compelling accused's participation including DNA warrants, covert removal of devices orders, breath/blood/urine samples, fingerprints, penile swabs, etc. In addition to being more intrusive, any evidence that flows from these procedures is usually admissible against an accused.
[21] Lastly, the Crown submits that the use immunity afforded to Mr. Talbot addresses any interference with Mr. Talbot's liberties.
[22] The defence argues that the assistance order violates Mr. Talbot's s. 7 Charter residual rights. In particular, the order deprives Mr. Talbot of a choice as to whether he wishes to communicate with the police and compels his participation in police gathering potentially incriminating evidence against him. In essence, such an order would violate his right to silence, his right against self-incrimination and his presumption of innocence as safeguarded by s. 11(d) of the Charter.
[23] The defence objects to the Crown's characterization of the intrusion on Mr. Talbot's s. 7 rights as minimal. To get into the cell phone, the police require Mr. Talbot to actively participate by divulging a swipe pattern he created and which exists in his head. This is vastly different than the passive participation required for many of the other types of orders compelling accused participation as identified by the Crown. And, further, the orders that have required more active participation by a suspect have been statutorily legislated and/or recognized as violating an accused's rights but saved by s. 1 of the Charter.
Legal Principles
[24] In analyzing whether s. 7 of the Charter has been infringed, there are 3 stages to consider: (1) does there exist a real or imminent deprivation of life, liberty, security of the person or a combination thereof; (2) what are the relevant principles of fundamental justice involved; and (3) measuring the deprivation against these principles to determine whether s. 7 has been infringed: R. v. S.(R.J.), 1995 CarswellOnt 2 (SCC), ¶ 31; R. v. White, 1999 CarswellOnt (SCC), ¶ 38.
[25] As Justice Lamer re-iterated in S.(R.J.): "[p]erhaps the single most important organizing principle in criminal law is the right of an accused not to be forced in assisting in his or her own prosecution" and this principle is "…perhaps best described in terms of the overarching principle against self-incrimination, which is firmly rooted in the common law and is a fundamental principle of justice under s. 7 of the Charter": ¶ 3; R. v. P.(M.B.), 1994 CarswellOnt (SCC), ¶ 37.
[26] The right to silence is a fundamental right protected by s. 7 of the Charter and applies whenever the "coercive power of the state is brought to bear upon the citizen". "It presumes an individual's right to choose whether to make a statement to the authorities or remain silent": R. v. Hebert, 1990 CarswellOnt (SCC), ¶ 5, 20; P. (M.B.), ¶ 39.
[27] These principles which "emanate from the broad principle against self-incrimination, recognize that is up to the state, with its greater resources, to investigate and prove its own case, and that the individual should not be conscripted into helping the state fulfil this task": P. (M.B.), ¶ 41.
[28] In White, the Supreme Court stated that "[a]ny state action that coerces an individual to furnish evidence against him or herself in a proceeding in which the individual and the state are adversaries violates the principle against self-incrimination. Coercion, it should be noted, means the denial of free and informed consent": ¶ 42.
[29] "The residual protections provided by the principle against self-incrimination as contained in s. 7 are specific and contextually-sensitive". "In some contexts, the factors that favour the importance for the search for truth will outweigh the factors that favour protecting the individual against undue compulsion of the state": White, ¶ 45, 48.
[30] In some cases, use immunity against using statutorily compelled evidence has struck a balance between protecting an individual's rights against self-incrimination and the state's search for the truth: White; S.(R.J.).
Canadian Jurisprudence
[31] As stated earlier, there are no known reported cases involving an accused being compelled to assist the police pursuant to s. 487.02 of the Criminal Code. A target of an investigation being forced to assist the police, however, was one of the issues considered by the Quebec Court of Appeal in R. c. Boudreau-Fontaine, 2010 QCCA 1108. The court reviewed a search warrant that imposed a condition on the target requiring him to disclose his passwords in order to establish that the computer had been connected to the internet in breach of his probation order. In finding that the law did not authorize such a condition to be imposed in a search warrant, the court held "…this order raises issues of the right to silence, the right to be presumed innocent, the right not to be conscripted against oneself, and the protection against self-incrimination. Commanded to participate in the police investigation and to give crucial information, contrary to his constitutional rights, the respondent made a statement (identification of his password) which is inadmissible and renders the subsequent seizure of the data unreasonable": ¶ 39.
American Jurisprudence
[32] This issue of compelling an accused to provide their passcode or fingerprint to unlock their cell phones has drawn some recent attention in the U.S. jurisprudence. I agree with the Crown that these decisions can be instructive and provide some guidance as to how the issues were analyzed and resolved in the American courts. I also agree with the defence, however, that caution must be used when relying on the U.S. case law – particularly when one considers the differences in criminal law as it exists in each State and in comparison to Canadian criminal law, the fact that these decisions often arise from civil or grand jury cases which have their own unique rules and that our Charter laws and values are different.
[33] In order to understand the American case law, the following principles and language must be kept in mind:
The Fifth Amendment states that "[n]o person…shall be compelled in any criminal case to be a witness against himself";
"Foregone Conclusion Doctrine" – Where the location, existence and authenticity of the purported evidence is known with reasonable particularity, the contents of an individual's mind are not used against him, and therefore no Fifth Amendment protection is available: Doe, 670 F.3d 1335 [citing Fisher v. U.S., 425 U.S. 391(1976)]; and
"An act of production can be testimonial when that act conveys some explicit or implicit statement of fact that certain materials exist, are in the subpoenaed individual's possession or control or are authentic and the 'touchstone' of whether production is testimonial is if the government compels the individual to use the contents of his own mind to explicitly or implicitly communicate some statement of act": Doe, p. 1345.
[34] The following is a summary of some U.S. decisions and the principles considered by the courts:
In re: Grand Jury Subpoena to Sebastien Boucher, 2009 U.S. Dist. LEXIS 13006 (Feb 19, 2009): The court upheld a grand jury subpoena directing Mr. Boucher to produce the password to his hard drive. The court relied on the "foregone conclusion" doctrine and found that, because the documents were known to the government, Mr. Boucher's constitutional rights were not affected;
U.S.A. v. Thomas J. Kirschner, 823 F. Supp. 2d 665, U.S. District Court for the District of Michigan, Southern Division (March 30, 2010): A grand jury subpoena required the defendant to provide all passwords used or associated with a computer and its files. The court quashed the subpoena as requiring the defendant to divulge his password through his mental processes was considered testimony and, even if the defendant was provided with immunity regarding the act of producing his password, this was not sufficient to protect his Fifth Amendment privilege regarding questions requiring him to reveal his password;
U.S.A. v. Ramona Camelia Fricosu, 841 F. Supp. 2d 1232, U.S. District Court for the District of Colorado (January 23, 2012): The court found that the Fifth Amendment was not violated where the defendant was compelled to produce unencrypted contents of her laptop computer because the government knew of the existence and location of the computer's files. Further, the defendant received immunity for her act of producing the unencrypted files;
In re Grand Jury Subpoena Duces Tecum dated March 25, 2011, 670 F.3d 1335, U.S. Court of Appeals, Eleventh Circuit (Feb 23, 2012): The Court of Appeal reversed a civil contempt order issued against Mr. Doe when he refused to produce unencrypted contents of his hard drives. The court reasoned that Mr. Doe would be using the "contents of his mind to incriminate himself or lead the Government to evidence that would incriminate him if he complied with the district court's order". Mr. Doe's refusal was protected by the Fifth Amendment because the acts of decryption and production were testimonial and the State had not shown that the "foregone conclusion" doctrine applied;
Commonwealth of Virginia v. David Charles Baust, 89 Va. Cir. 267, Circuit Court of the City of Virginia Beach, Virginia (Oct. 28, 2014): The court concluded that a defendant could not be compelled to produce his passcode to access his smartphone, but could be compelled to produce his fingerprint to do so. The court found that the Fifth Amendment only protected against "compelled" self-incrimination. In this case, the contents of the phones were created voluntarily and were not protected by the Fifth Amendment, but compelling the accused to provide access through his passcode was. In particular, the court stated that the "...Defendant cannot be compelled to 'divulge through his mental processes' the passcode for entry. The fingerprint like a key, however, does not require the witness to divulge anything through his mental processes. On the contrary, like physical characteristics that are non-testimonial, the fingerprint of Defendant if used to access his phone is likewise non-testimonial and does not require Defendant to 'communicate any knowledge' at all. Unlike the production of physical characteristic evidence, such as a fingerprint, the production of a password forces the Defendant to 'disclose the contents of his own mind'";
Securities and Exchange Commission Civil Action v. Bonan Huang, 2015 U.S. Dist. LEXUS 27853, U.S. District Court for the Eastern District of Pennsylvania (Sept 23, 2015): The SEC's motion to compel the passcodes to open the defendants' work-issued smartphones was denied. The foregone conclusion doctrine did not apply as the SEC could not show the existence or location of the documents it was seeking;
State v. Stahl, Fla. 2d DCA, Court of Appeal of Florida, 2nd District (Dec. 07, 2016): The Court of Appeal ordered Mr. Stahl to produce his passcode to unlock his cell phone. In particular, the court stated "… the communication was sought only for its content and the content has no other value or significance. By providing the passcode, Stahl would not be acknowledging that the phone contains evidence of video voyeurism. Moreover, although the passcode would allow the State access to the phone, and therefore be a source of potential evidence, the State has a warrant to search the phone – the source of evidence had already been uncovered. Providing the passcode does not 'betray any knowledge [Stahl] may have about the circumstances of the offenses' for which he is charged. It does not implicitly 'relate a factual assertion or disclose information' [citations omitted]": p. 5. The court went on to say "[t]hat an accused may be 'forced to surrender a key to a strongbox containing incriminating document' but he cannot 'be compelled to reveal the combination to his wall safe' is another often repeated quote. Despite the many cases referencing the quote, we have found none that provide details of 'surrender[ing] a key'. We question whether identifying the key which will open the strongbox – such that the key is surrendered – is, in fact, distinct from telling an officer the combination. More importantly, we question the continuing viability of any distinction as technology advances. In that respect, we are not inclined to believe that the Fifth Amendment should provide greater protection to individuals who passcode protect their iPhones with letter and number combinations than to individuals who use their fingerprint as a passcode. Compelling an individual to place his finger on the iPhone would not be a protected act; it would be an exhibition of a physical characteristic, the forced production of physical evidence, not unlike being compelled to provide a blood sample or provide a handwriting exemplar": pp 5-6;
State of Minnesota v. Matthew Vaughn Diamond, 890 N.W.2d 143, Court of Appeals, Minnesota (January 17, 2017): Police seized a cell phone from Mr. Diamond and were unable to unlock it. They sought a warrant to compel Mr. Diamond to provide his fingerprint to unlock it. He initially refused, was found in contempt and later provided his fingerprint which allowed police access to the contents of his phone. Mr. Diamond appealed and argued that the order compelling him to provide a fingerprint to unlock his cell phone violated his Fifth Amendment rights against self-incrimination. The court held that Mr. Diamond was not required to disclose any knowledge regarding his guilt by being ordered to produce his fingerprint. Producing his fingerprints was no different than furnishing blood samples, providing handwriting or voice exemplars, standing in a lineup, or wearing particular clothing. As it was not a testimonial communication, it did not violate his Fifth Amendment right against compelled self-incrimination;
In Re Application for a Search Warrant, 236 F.Supp.3d 1066 (US District Court, N.D. Illinois, Eastern Division – Feb 16, 2017): The court denied an aspect of a search warrant where the State was seeking authority to compel any individual present at the time of the search to provide their finger/thumb prints onto the Touch ID sensor of any Apple devices found in order to gain access to their contents. The request was not limited to a particular person or device and did not establish probable cause to compel any person to provide their fingerprints. The government argued that production of physical characteristics, such as voice or handwriting exemplars, blood samples, and line-ups do not raise Fifth Amendment concerns and that fingerprints should be treated the same. The court clarified that it was not concerned with the privacy interests of a fingerprint (as courts have made it clear there are no Fourth Amendment interests in the print itself), but the method of obtaining the fingerprint was at issue. The court pointed out that this was a fact-specific inquiry where the State had not established a proper basis, but that there may be certain instances where 'forced fingerprinting' would be approved such as where the nature of the electronic information sought is a 'foregone conclusion';
Matter of Single-Family Home and Attached Garage, 2017 WL 4563870 (U.S. District Court, N.D. Illinois, Eastern Division - Feb 21, 2017): The court denied the police authorization to press the fingers of 4 family members to Apple devices in order to unlock the devices. The State acknowledged that compelling these individuals to enter passcodes into the devices would violate their Fifth Amendment, but argued that allowing an order for fingerprints was "compelling a mere physical act rather than a communicative act". The court found that if the finger successfully unlocked a device containing child pornography, "then this act of production will clearly communicate incriminating and unknown information to the government beyond what is learned from the examination of materials on the device. At the very moment of unlocking a device using a unique fingerprint, the individual 'tacitly concedes' that the device and its contents are in his 'possession and control'". This implicit testimony was not a foregone conclusion and no immunity was being granted by the State. This decision was overturned In the Matter of the Search Warrant Application for [redacted text], 2017 WL 4563861 (U.S. District Court, N.D. Illinois, Eastern Division – Sept 18, 2017) where the court ruled that compelling the application of a fingerprint to the ID sensor did not violate the self-incrimination privilege because that act did not qualify as a testimonial communication. The court found the case law drew "a distinction between compelling a person to communicate something to the government versus compelling a person to provide some physical characteristics as part of an investigation. These physical acts include putting on a shirt to see if it fits, providing breath samples, submitting to fingerprints and photographs, and providing handwriting or voice exemplars. The acts themselves were deemed not to comprise of a communication by the person doing them. The same holds true for fingerprint seizures." If the act does not inherently contain a communication from the person, then no testimony is obtained from the person". "The fingerprint seizure does not reveal the contents of the person's mind in the way that disclosure of a passcode would or in the way the disclosure of a cryptography key would". Ultimately, the court found that the fingerprint seizure of the four residents did not violate their privilege against self-incrimination;
U.S.A. v. John Doe, 851 F.3d. 238, United States Court of Appeals for the Third Circuit (March 20, 2017): The Court of Appeal affirmed the District Court's ruling holding Mr. Doe in contempt for failing to provide his devices in an unencrypted state as ordered. The court found that the judge had not committed any clear errors in his factual findings and in applying the foregone conclusion doctrine.
[35] In essence, most of the U.S. case law has drawn a distinction between the physical act of being compelled to provide a fingerprint and the mental act of being compelled to provide a decryption code or password to unlock a cell phone. There has been more resistance with ordering the latter given that it forces targets to impart their knowledge of what is solely created and stored in their minds.
Legal Analysis and Findings
[36] The Crown urges me to adopt the reasoning in Stahl and submits that the use immunity contained in the proposed terms and conditions of the assistance order addresses any potential Charter concerns. The defence submits that the mere act of compelling an accused to assist the police, whether it be by providing a fingerprint or password, is in violation of the accused's s. 7 Charter rights.
[37] When analyzing whether Mr. Talbot's Charter rights are infringed by the assistance order, the analysis is limited to his compelled participation to provide his swipe password to the police. I have previously found that there were sufficient grounds to interfere with his privacy interests in the contents of the cell phone in authorizing the search warrant to search the cell phone. Simply put, the police have the right to look at the contents of Mr. Talbot's phone.
[38] In considering and applying the legal principles outlined above, I find as follows:
Compelling Mr. Talbot to assist the police by providing his swipe password which would allow the police to gain access to his cell phone does infringe Mr. Talbot's s. 7 Charter rights. In particular:
(1) There exists a real and imminent deprivation of his life, liberty and security of the person. The assistance order breaches Mr. Talbot's right to choose whether to remain silent or communicate with the police. Mr. Talbot is being compelled to participate. If he refuses to comply, the proposed terms and conditions contemplate using as much force as is necessary pursuant to s. 25 of the Criminal Code (although the Crown properly conceded that this condition would not be pursued if the order was granted as any contemplated force where the information is held in the mind of the accused would not be in compliance with the Charter) and/or additional charges of disobey a court order and obstruct police could be laid. Both the compelled participation and the ramifications for failing to comply have a significant impact on Mr. Talbot's life, liberty and security of the person;
(2) The relevant principle of fundamental justice involved is the principle against self-incrimination which encompasses the right to remain silent. Mr. Talbot is being forced to assist in his own prosecution. He is being compelled to communicate information against his will in order to provide a gateway or access to stored evidence. As indicated by our Supreme Court, it is up to the state to prove its case and an accused should not be conscripted into helping the state do this;
(3) The deprivation has not occurred in accordance with the relevant principles. I recognize that the state's search for the truth and right to collect and marshal evidence are important factors that must be balanced against protecting an individual's right against self-incrimination. As evidenced in the case law, this right is not absolute. The right to silence can be waived by an accused, and diminished through reverse-onus provisions and disclosure of alibi evidence. In addition, our courts have implemented use-immunity measures or limited the use of compelled evidence in the appropriate circumstances in order to achieve a balance between these two factors. In this case, however, the proposed use immunity does not adequately address the compelled participation of the accused in these circumstances. This is not the same as in White, where the accused's compelled statement in an HTA investigation in furtherance of the search for the truth is adequately addressed by the fact that those statements cannot be used against them in any criminal proceedings. In that case, all of the concerns about self-incrimination are redressed by the inability of the state to use the compelled statement. Likewise, in S. (R.J.), fundamental justice was satisfied where the separately charged co-accused's testimony could not be used to incriminate him in a separate proceeding. In our case, only the perceived link to opening the cell phone is protected by use immunity, not the contents. And while there may be judicial authority for access to the contents of the cell phone, the extent to which the s. 7 Charter rights are breached by an accused being compelled to assist the police in gaining access is not alleviated by the proposed use immunity. Therefore, the deprivation of the s. 7 Charter rights is not in accordance with the relevant principles;
I disagree with the rationale outlined in Stahl. The issue before the court goes beyond simply reasoning that the swipe password has minimal content and little or no other value or significance. Or, the fact that the swipe passcode does not 'betray any knowledge' Mr. Talbot may have about the circumstances of the offence or the contents of the cell phone. In my view, from a Charter-based perspective, the issue is more about the compelled participation of the accused in the prosecution against himself; and
Further, the nature of the compelled participation is particularly intrusive when one considers that the accused is being forced to actively participate by communicating information to the police that solely exists in his head as opposed to compelling a person to passively provide some physical characteristics as part of an investigation (ie. DNA samples, fingerprints, breath samples, etc).
Conclusion
[39] I find that the proposed assistance order which requires Mr. Talbot to actively participate in the investigation against him violates his s. 7 Charter rights. Neither the use immunity suggested nor the proposed terms and conditions of the assistance order alleviate this Charter violation. In these circumstances, I am not satisfied that it is in the best interests of the administration of justice to issue the assistance order and I decline to do so.
Released: November 24, 2017
Justice Cecile Applegate