The Right To Silence Carries The Right To Keep Passwords Secret

• Law Firm: McCarthy Tétrault LLP
• Subject Matter: Litigation, Mediation & Arbitration, Privacy, Privacy Protection, Court Procedure, Trials & Appeals & Compensation
• Author: Canadian Appeals Monitor, Gabriel Querry, Nicole Andreina Camacho, Julie-Martine Loranger and Natalie Kolos
• Published date: 24 July 2023

The right to silence is a fundamental principle of Canadian criminal law that protects suspects and accused persons from being compelled to incriminate themselves. It also carries the right to keep electronic device passwords secret and, as the Ontario Court of Appeal recently affirmed in R. v. O'Brien, 2023 ONCA 197 ("O'Brien"), it prevents law enforcement from using pressure tactics to mislead suspects into believing that they are obliged to disclose their passwords. The decision is a rebuke of law enforcement's practice of taking advantage of the psychological impact of raids in order to pressure suspects, in the heat of the moment, into "volunteering" their passwords without concern for their informed consent.

Factual Background and Trial Decision

Mr. O'Brien and his wife were awakened in the morning by banging on their door. O'Brien opened the door to find three police officers equipped with a warrant to search his home and electronic devices located therein. Almost immediately upon entry, the police officers asked O'Brien for the passwords to his smartphone and computer, without informing him of his right to refuse or the consequences of his compliance. The police then accessed the password-protected smartphone and computer where it found incriminating evidence against O'Brien.

At no time did the police inform O'Brien of his rights and options, including his right to leave his house during the search, his level of freedom within his house and the right to call counsel for legal advice.

At trial, it was demonstrated that "upon executing search warrants for electronic devices, police routinely ask for passwords without explaining that it is unnecessary to comply, and without explaining what the consequences of compliance would be" (para. 11). The trial judge expressed concern about the "apparent cavalier attitude" of the police in obtaining passwords, and noted that this was a "serious matter" that needed to be addressed by the police service (para. 13).

In the end, the trial judge excluded the evidence from the smartphone, finding that the police violated O'Brien's right to silence and his right to be free from unreasonable search and seizure under sections 7 and 8 of the Charter of Rights and Freedoms (the "Charter"). However, she refused to exclude the evidence found on the computer, accepting the police testimony that the password used to access the computer was also found on a piece of paper already in front of the computer when the police...