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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