Bail Blog

A question that comes up more and more in recent years is, can the police unlock your phone if you’re under arrest? The development of technology, in particular the ubiquitous presence of smartphones, creates issues not previously dealt with by the courts and legal scholars. Requiring someone to provide passwords to the police is one such example of a novel legal problem. The Ontario Court of Justice in R v Shergill recently answered whether the court, through an assistance order under section 487.02 of the Criminal Code, can lawfully require an arrested individual to unlock encrypted data to aid an investigation.

Can The Police Force You To Unlock Your Phone In Canada?

Police can and will confiscate your phone if you are arrested. If a person’s device is unlocked upon arrest, the police may in some circumstances lawfully retrieve stored data. However, when the device is locked, the police may not be able to access any information. Lawful seizure of the device alone—without access to stored data—provides little to no investigative value. In limited circumstances, an assistance order may force an individual to participate in the police search so that the investigation is more meaningful. According to Shergill, this power does not extend to an accused person.

Related: “I am Being Arrested By the Police. I Need to Speak to a Lawyer”

This is largely because the data is not accessible without participation of the accused. Trying to obtain encrypted information any other way would expend too many resources or may even destroy the seized device. Although the password itself may not be used as evidence against someone, the inculpatory effect of providing encryption keys in and of itself makes password compulsion unconstitutional. An assistance order against an accused violates the person’s rights including the presumption of innocence, right to silence and right against self-incrimination.

How Long Can The Police Keep Your Phone For An Investigation?

Individual Rights vs Public Interest

The court in Shergill also distinguished password compulsion from other forms of orders related to the creation of physical evidence (e.g., DNA and breath samples). Physical evidence can be obtained through other means. An encryption key, however, requires communicating a thought in the person’s head. The key cannot be revealed unless the person utters the characters. In Canada, the protection of freedom of speech extends to encryption keys, even when it may or may not contain information vital to police investigation. Balancing the public interest in prosecution against an accused’s liberty interests, Shergill sided with protecting individual rights.

This decision has not been appealed or otherwise challenged by other jurisdictions. With emerging technological advancements, the Canadian courts have made it clear that while the police may acquire search warrants against individuals and seize items, access to information within the seized devices are not automatic.

Related: What to Do if You Are Stopped by Police

For more information on search of password-protected devices, or to obtain effective legal representation in unlawful search and seizure of your cell phone in Canada, contact us at Filkow Law – 604-558-8778. If you find yourself in need of a criminal defence lawyer, call immediately.

Recently, the Supreme Court of Canada issued a landmark decision relating to the imposition of conditions on release (i.e., bail conditions) and breaches of those conditions.

Generally, to be convicted and found guilty of a criminal offence a person must commit a wrongful act – the actus reus – and must have the requisite guilty mind to commit that wrongful act – the mens rea. However, the law recognizes that there are two types of mens rea – subjective and objective.

Subjective mens rea is where a person is responsible for committing the crime if they intended, knew, or were aware of what might happen because of their wrongful act.

Objective mens rea is where a person did not mean to do anything wrong but is nevertheless responsible for committing the wrongful act. In other words, objective mens rea looks at what an ordinary or reasonable member of society would have done in the same situation.

Bail Conditions in Canada: R. v. Zora Explained

Prior to the decision in Zora, courts throughout Canada disagreed on the mens rea to apply to breaches of bail conditions. However, in Zora, the SCC confirmed that the mens rea to be applied for breaching a bail condition was subjective. This means that the Court, in deciding the guilt or innocence of the accused person alleged to have breached a bail condition, must look at what that person actually knew or was aware might happen as a result of committing the breach.

In addition to resolving the issue of objective versus subjective mens rea for breaches of bail conditions, the Supreme Court took the opportunity to revisit the purpose and imposition of bail conditions. For decades prosecutors would seek, and Judges would consider and often impose many conditions to an accused’s person release or bail.  The Supreme Court of Canada in Zora found this was the wrong practice and has transformed this unjust tradition.   Rather, The Supreme Court found that normally there should not be any conditions imposed on bail. There are many reasons for this including an accused’s presumption of innocence, unnecessary restrictions on a person’s liberty and the impact of pre-trial conditions on vulnerable populations.  In other words, the default form of bail for most crimes is release on an undertaking. Additional bail conditions can only be imposed if they are clearly articulated, minimal in number, necessary, reasonable, the least onerous in the circumstances, and linked to the risks regarding the grounds for detention under section 515 of the Criminal Code. These include securing the accused ‘s attendance in court, ensuring the protection or safety of the public and maintaining confidence in the administration of justice.

The Zora case has changed things. Bail conditions including no contact, no go, reporting, no alcohol, curfew and any other conditions must be justified and necessary. 

For more information on allegations of breaching bail conditions or for assistance in changing bail conditions, contact Filkow Law to speak with one of our experienced lawyers.

Section 11(e) of the Canadian Charter of Rights and Freedoms confers the right not to be denied reasonable bail without just cause. As such, the detention of accused individuals is intended to be the exception, while pre-trial release is the rule. Additionally, the presumption of innocence enshrined in section 11(d) of the Charter provides that one’s liberty should not be taken away prior to conviction, unless justified under section 515(10) of the Criminal Code. Therefore, release with the least onerous conditions is generally favoured over pre-trial detention.

Section 525 of the Criminal Code

Section 525 of the Criminal Code requires a judicial review of an accused’s detention if the trial has not begun within 90 days. The purpose of this section is to avoid accused persons languishing in pre-trial custody for extended periods of time while awaiting their trial.

There are sound reasons for this. It is more difficult for accused individuals held in pre-trial custody to access legal advice and effectively instruct their counsel. Section 525 provides the opportunity to have a judge reconsider whether the continued detention of an accused person is justified when a trial is not held within 90 days. It is a safeguard that protects an accused’s liberty and is consistent with the presumption of innocence enshrined in section 11(e) of the Charter.

However, until recently, there were two competing lines of authority in British Columbia about how to interpret section 525 detention review hearings. One line of authority ruled that section 525 required a two-step process. The first step required the accused to establish unreasonable Crown delay in bringing the case to trial. If established, the accused then had the burden to show a material change in circumstances under the normal section 515(10) bail provision of the Criminal Code. The other line of authority favoured a one-step process that did not place an onus on the accused to prove unreasonable delay prior to their bail review under section 525. Guidance was needed to determine which of these two competing lines of authority were correct.

Pre-Trial Custody: Corey Myers’ Experience

On March 28, 2019 the Supreme Court of Canada handed down a unanimous decision of nine Justices in R v. Myers 2019 SCC 18 that effects accused persons in pre-trial custody. The Court unanimously ruled that an accused does not need to establish unreasonable delay in bringing him to trial in order to justify his release under section 525 of the Code. In other words, the Court ruled that section 525 is a one-step, and not a two-step, process.

Corey Myers was arrested and charged with multiple firearm offences in January of 2016. He first sought bail after completing a prior sentence in November 2016, but his application was dismissed as the suggested terms of his bail did not sufficiently address the risk that Myers might commit further offences.

In March 2017, the Crown began a review hearing under section 525 as the 90-day detention period had expired. The British Columbia Supreme Court determined that the test for a section 525 hearing was a two-step process. This provided no recourse for Myers to challenge his detention order as there had been no unreasonable delay in bringing him to trial.

In January 2018, Myers pled guilty to reduced charges and was sentenced to 30 months in prison. However, Myers appealed the British Columbia Supreme Court’s decision that a section 525 bail review hearing required him to show there was unreasonable delay in getting him to trial before he could successfully get bail under that section. Although the appeal was moot since Myers was no longer in pre-trial custody, the Supreme Court of Canada exercised its discretion to hear the appeal anyway.

Pre-Trial Custody: The New Approach

In Myers, the Court unanimously set forth a new procedure for detention review hearings. The Court ruled that section 525 is an automatic provision laying mandatory obligations on the jailer and judge. Now, the jailer must apply for the hearing immediately after the 90-day period has expired and a judge must set a date and give notice of the hearing to the accused. The accused is not required to prove unreasonable delay in getting to trial to get such a review.

The Court found that Parliament created section 525 to allow a judicial assessment of whether the continued detention of the accused is justified under section 515(10) of the Criminal Code. That section sets out three possible grounds to justify the detention of an accused: where it is necessary to ensure the accused attends court; where it is necessary to protect the safety of the public; and where it is necessary to maintain public confidence in the administration of justice. The Court found that the right to a section 525 review is automatically triggered after 90 days. The Court further ruled that there is no additional requirement to also prove unreasonable delay in getting to trial beyond 90 days in order to succeed and be released from custody.

The judge in a detention review hearing may consider new evidence, changes in the accused’s circumstances, unreasonable delay, and the rationale for the original detention order, in addition to the evidence and submissions in prior bail hearings. Finally, the judge has the discretion under sections 525(9) and 526 to expedite the trial of a detained accused, giving consideration to the risk of unconstitutional delay.

Pre-Trial Custody: Call Filkow Law

The Myers decision represents a significant change in the law and process surrounding pre-trial detention which will no doubt impact the number of accused persons who seek their release from custody after an initial detention order.

For more information regarding pre-trial custody, call Filkow Law for help.