Friday, 13 January 2017

Should the police be able to search your cellphone?

Privacy is a right that all persons in democratic nations cherish. The police cannot enter your home (unless invited) without a search warrant. There is an exception however and that is if the police suspect that someone in your home is in danger. But if they want to enter your home in search for evidence, they must convince a justice of the peace or a judge that the police have good reason to believe that what they are looking for is in your home and necessary to prove the guilt of the suspect.

The Supreme Court of Canada in 1982 in the case of Attorney General v MacIntyre said in part;

A search warrant may be broadly defined as an order issued by a justice under statutory powers, authorizing a named person to enter a specified place to search for and seize specified property which will afford evidence of the actual or intended commission of a crime. A warrant may issue upon a sworn information and proof of reasonable grounds for its issuance. The property seized must be carried before the justice who issued the warrant to be dealt with by him (or her) in according to the law.

Search warrants are part of the investigative pretrial process of the criminal law that are often employed in the earlier stages of the  investigation and sometimes before the identities of all of the suspects are known by the investigators.

In this balancing of interests, Parliament has made a clear policy choice. It is the general public’s interest in the detection, investigation and prosecution of crimes that has been permitted to dominate the interests of the individual. How far should the domination of the interests of the citizens go?

Since the issue of a search warrant  is a judicial act and not an administrative act, it appears to me that in order to exercise the right to question the validity of a search warrant, the interested party (the person whose property is being searched) or his counsel must be able to inspect the search warrant and the information on which it is based. Although there is no appeal from the issue of a search warrant, a superior Court judge has the right by a prerogative writ to review the act of the Justice of the Peace or judge in issuing the warrant. In order to launch a proper application, the applicant (the police officer who has requested the warrant) should know the reasons or grounds for his application, which reasons or grounds are most likely to be found in the form of the information sworn by the officer or warrant itself.

I am unable to conceive anything but a denial of Justice if the contents of the information and warrant, after the warrant is executed, (enforced) are hidden from the person whose property is being searched until the police have completed the investigation or until the Crown prosecutor decides that access to the file containing the warrant is to be allowed. Such a restriction however could effectively delay, if not prevent review of the judicial act of the Justice in the issue of the warrant. If a warrant is void, then it should be set aside as soon as possible and the earlier the application to set it aside can be heard, the more the right of the individual is protected.

However, although the warrant should be shown to the person who opens the door to the officer carrying the warrant, he can’t be shown the sworn information because it is still in the office of the judicial officer who approved the Warrant.

If the police are looking for illegal guns as per the instructions on the warrant, and they come across illegal drugs hidden under shirts in a dresser drawer, they can remove the drugs but they cannot charge anyone in the house with being in possession of illegal drugs because the search warrant didn’t include a search for illegal drugs. However if the drugs are on a top of the dresser in plain sight, then they can charge the person who owns or rents the house.

American courts have also recognized a general right for citizens to inspect and copy public records and documents, including judicial records and documents. This applies in Canada also. Such common law rights (former court decisions) have been recognized, for example, in courts of the District of Columbia (Nixon v. Warner Communications, Inc. (1978), In that case Mr. Justice Powell, delivering the opinion of the Supreme Court of the United States, observed at p. 1311:    

Both the petitioner and respondents acknowledge the existence of a common-law right of access to judicial records, but they differ sharply over its scope and the circumstances warranting restrictions of it. An infrequent subject of litigation; its contours have not been delineated with any precision.     

Considering the relatively few judicial decisions both in the US and in Canada, it is difficult, and probably unwise, to attempt any comprehensive definition of the right of access to judicial records or delineation of the factors to be taken into account in determining whether access is to be permitted, especially if the search is in respect to acts of terrorism.

In the darkness of secrecy, sinister interest and evil in every shape or form, malicious police officers can have full opportunities to wander beyond the purpose of the search warrant. The citizens should have the right to make sure that all of the checks are applicable, operational and functioning to fight judicial injustice.  Where there is no right to inquire, there is no justice. 'Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against illegal mischief.  

The RCMP police force in Canada are asking for the creation of a law that would make it a criminal offence to refuse to give the officer carrying a search warrant, the officer’s demand for your password or encryption key that will let him read what is in your cell phone.  Currently, there is no law compelling you to comply with that request.

The purpose of the police is to accomplish through a legal order what police are increasingly unable to accomplish technologically—getting inside digital devices containing what they believe is crucial evidence in criminal investigations.

It’s a very radical proposal in Canadian law. It changes the basic nature of how the police can go about achieving the ends of criminal investigation, by compelling the person who is under investigation to participate in the investigation.      

If a suspect is required to prove some fact on the balance of probabilities to avoid arrest, the proposed law violates the presumption of innocence of the suspect because it permits the police to extend their powers beyond the suspect’s protection of the Charter.

Compelling a suspect to whom the search warrant is addressed to co-operate with the police in possession of the warrant would breach protections in the Canadian Charter of Rights and Freedoms against self-incrimination and the right to remain silent and uncooperative.

Should the police be able to undermine the fundamental structure of our justice system and our Charter because it’s impossible for police officers to get information from someone’s cell phone without first knowing the password or the encryption key?

The roadside breath sample test is one example in which Canadians have decided that the scourge of impaired driving is serious enough to empower the police with extraordinary authority to compel evidence from the suspect, such as a sample of his or her breath or blood.

Although it conflicts with the purpose of the Charter, to wit; Section 11 (b) that states; (Any person charged with an offence has the right not to be compelled to be a witness in proceedings against that person in respect of the offence.) the breach is proper because it is in the best interests of the general public.

The examples of the kind of breaches I am referring to are breath and blood samples which can be demanded when a police officer has reasonable grounds to believe a driving offence was committed. However, these demands don’t require a search warrant to reinforce the demands. It is against the law to refuse to cooperate with respect to the demand for the breath sample or to give a blood sample if they involve the person being the driver of a vehicle.  An accused cannot be forced to do so but since it is an offence to not cooperate with respect to the demand, he or she can suffer punishment—generally one year’s driving suspension.

The DNA profiles derived from bodily substances obtained from a suspect under the Criminal Code. DNA warrants are only to be used in the investigation and prosecution of a designated offence and are not to be included in the national DNA data bank. This approach is consistent with the constitutionally protected presumption of innocence and permits the use of the DNA information either to exclude the person as a suspect or as evidence against the person by establishing a link between that person and the alleged crime.

There are two ways of obtaining a DNA sample from a suspect.  The first is by directly swabbing the inside of a suspect’s mouth. The other is by drawing blood from the suspect’s body.

Interference with an individual's bodily integrity in order to obtain bodily substances for law enforcement purposes potentially raises several issues under the Canadian Charter of Rights and Freedoms. Most importantly, therefore, under both the DNA warrant and the DNA data bank schemes an independent judicial arbiter determines whether it is appropriate, in the circumstances, to authorize an agent of the state to take samples of bodily substances from the individual for limited law enforcement purposes. In doing so the judge balances the rights of the individual and the law enforcement interests of the state. Judicial discretion is required to ensure the constitutionality of the scheme as a whole.

Among ten high priority RCMP case files, is a current case involving a child alleging sexual assault by the child’s father who recorded the abuse on his iPhone. What a stupid fool he is.  While charges have been laid based on the child’s complaint, police have been unable to access the alleged video evidence that would be crucial to the prosecution of the father. 

The phone, when the police looked at it under lawful authority; was encrypted. They could not get the video recorded evidence of that assault. That is because there is no legitimate means of forcing the father to provide the encrypted code to the police investigators in order for them to unlock that phone so that they could get the necessary evidence needed for a conviction.

In this case, the police say that the public has a public interest in giving the police the option of going to a judge for an order for them to instruct the suspect to unlock his phone.

“The penalty for a refusal would be something that would have to be decided by the legislators and the courts. Refusal of such an order could also bring punishment to the suspect because of his contempt of a court order. However, the purpose of the request of such an order would have to be relatively significant to compel somebody to unlock their phone for a serious offence. It just can’t be a fishing expedition. If the child said that he or she saw the father recording he sexual assault, it would be sufficient for such an order to be given and enforced.

If we accept that products of the mind such as passwords should not be compelled because of protections against self-incrimination, then individuals would have the ability to choose between a password and encryption code and a fingerprint or voice command when setting up their device.

Of course, the police could get an order to force the suspect to place his or her fingers on the device to open it up but getting the suspect to speak to the device with his or her voice would be almost impossible.  If the suspect has already been charged with a serious crime where the penalty can be greater than the penalty for contempt of court, he or she will remain silent. 

Based on a Toronto Star/CBC poll by Abacus Data that solicited the views of 2,500 people in October and November, nearly half agreed to the idea of police should have the ability to access personal devices. With the addition of a judge’s authorization, support jumped to 77 per cent.

Apparently about half of the encryptions are used for financial transactions. In 2015, there were as much as $42 billion transferred by the use of encryption transfers. The other half of the encrypted messages on cellphones etc were for personal purposes.

I think we do have a right to privacy and our ability to self-secure our communications is important however, there are probably some exceptions that must be made that are in the best interests of society such as fighting terrorism, criminal activities and financial corruption. 

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