police

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.

Kevin Filkow recently spoke to new criminal lawyers and civil lawyers at the Trial Lawyers Association, “Trial by Fire” program. The main topic was what to do when someone is arrested or is in police custody. It was a very important and instructive discussion.

Although, the most fundamental and critical advice is that an individual should not make any statements to the police, there are many other important considerations, protections and strategies that must be communicated.

Related: Can the Police Unlock Your Phone? 

What To Do If You Are Arrested By The Police

The discussion covered what the individual who is in police custody should do, and what should the lawyer discuss with the police? What information should the lawyer receive from the police? What can be done to assist the individual being released from custody? Is there different advice depending on whether the arrest is for a drinking and driving charge, domestic assault, drug charges or murder?

One of the scariest and most unpleasant events for someone is to be in police custody. There is a serious imbalance of power. One’s fundamental liberties are at stake. A phone call to a lawyer is generally the only legal assistance at a very vulnerable time. The lawyers’ role and legal assistance are extremely important on many levels. Be sure to contact Filkow Law if you have been arrested. 

Being stopped by the police is never a fun experience. It can be very unsettling to be pulled over on the street or in a vehicle and questioned by the police. When you are stopped by the police, the very first question you would have is “what are my rights? Do I have to say anything? If so, to what extent?”

What To Do If The Police Stop You: Your Basic Rights When Dealing With Police In Canada

There are very limited exceptions – you may have a duty to identify yourself and to provide identification – the law in Canada is clear: every individual has the right to remain silent, the right to Counsel and to other protected rights as well.

1. Basic Rights When Dealing With Police In Canada: Being stopped on the street

Suppose that you are walking on the street and encounter the police. If the police simply say “stop” or surround you then you are detained since the officer blocks your path in an intimidating manner.

A “detention” is the act of keeping back or withholding, either accidentally or by design, a person or thing. R. v. Suberu, the leading case from the Supreme Court of Canada, defines a detention as follows:

“A suspension of an individual’s liberty by significant physical or psychological restraint, with various factors helping to determine whether there was a psychological detention.”

The difficulty for you is that you do not know if the police have reasonable grounds to detain you. This ambiguity can easily be resolved by simply telling the police officer that you do not want to speak to them and ask, “Am I free to go?”. If the police tell you that you are not free to leave you are now detained and you have the right to be told why.

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

Generally, the police do not have the power to stop or question you without a reason. The police are only permitted to detain and demand your identification when they have reasonable suspicion that you are engaged in criminal activity.  If the police do not have a reasonable reason the detention is illegal and any evidence they obtain can be excluded at trial. 

However, there is an exception, if the police stop you to issue an appearance notice or if you have committed a by-law infraction or other ticket-able offence, you are under an obligation to identify yourself by giving them your name and address. It is a criminal offence to lie about your name or address and you may be charged with obstructing the police from carrying out their duties.

When you are detained, you have no obligation to say anything to the police, nor do you need to answer any of their questions. You are free to say absolutely nothing to the police as the law allows you to remain silent.

The police also have a duty to let you speak to a lawyer in private as soon as possible. It is highly recommended you speak to a lawyer before making any statements to the police.

2. Basic Rights When Dealing With Police In Canada: Being stopped while driving

Just like when you are stopped on the street, your Charter rights apply to you and to anyone else in your car when the police officer pulls you over while you are driving. However, in Canada, driving is considered a privilege, not a right and the power for a stop comes from the Motor Vehicle Act. Thus, while you are protected by the Charter rights, there are certain obligations that you have during a police vehicle stop.

The police are legally permitted to investigate in almost all driving situations if the police have reasonable grounds to believe you have committed a criminal offence, or if they observe you committing an offence under the Motor Vehicle Act.

Under the Motor Vehicle Act, a driver must present their driver’s licence, vehicle registration and proof of insurance for the vehicle they are driving.

Failure To Stop For Police In BC

Failing to cooperate with the police officer in this situation may give them the right to arrest you and lay a criminal charge for obstruction. 

The police can also order you to step out of your vehicle if they suspect you are driving while impaired or if they have reasonable grounds to concern for their safety.

However, the police power to stop your vehicle to investigate your license, insurance, registration, or the safety of your vehicle does not permit a comprehensive search of your car or an investigation into the identities of your passengers. You have a right to say “no” to a police demand to search your vehicle.

Likewise, passengers do not have an obligation to identify themselves unless the police have reasonable suspicion or belief that they are involved in a criminal offence or by-law infraction.

Remember that it’s always your right to ask why you are being stopped and to contact a lawyer before answering any questions or consenting to the police requests.

If you are in need of legal assistance, or would like more information regarding your basic rights when dealing with the police in Canada, call Filkow Law today. Our lawyers have over 50 years of experience in the BC Criminal Court system and can help.