Canadians Have Legal Right Not To Surrender Their Passwords

August 30, 2016

CCLA is troubled by the resolution of the Canadian Association of Chiefs of Police (CACP) this month, proposing the creation of a new police power that would force individuals to surrender passwords to encrypted electronic devices to law enforcement. This would include cell phones, laptops, tablets, etc. 

In our view, the creation of a power to compel decryption would almost certainly be considered unconstitutional in Canada. The right not to be conscripted against oneself, as well as the protection against self-incrimination, are enshrined in the Canadian Charter of Rights and Freedoms and are fundamental organizing principles of the criminal law. Moreover, critical privacy rights are at stake when police seek to interfere with electronic devices. This cannot be taken lightly.

While the CACP points out that compelled decryption legislation has been adopted by other jurisdictions, it fails to note that such legislation has been deeply problematic. In the United States, where Fifth Amendment protections against self-incrimination closely parallel those in Canada’s Charter, several courts have deemed such a power unconstitutional (e.g., U.S. v Doe). Canadian courts have also recognized that the right against self-incrimination is engaged in circumstances where police seek the disclosure of a password (e.g., the Quebec Court of Appeal’s decision in R v Boudreaux-Fontaine). 

CCLA acknowledges the concern expressed by the CACP that the use of encryption may render valuable evidence inaccessible in some cases. We also appreciate the call for open conversation on this issue. However, compelled decryption is simply incompatible with the Charter. We cannot allow the fear of new technologies, or a desire for investigative convenience, to dictate the limits of our constitutionally protected rights and freedoms.

CCLA will be drafting a submission to the upcoming federal Consultation on Cyber Security to elaborate on this position, and will be embarking on further research and legal advocacy on the Charter issues raised by encryption technology in the coming months.