Mandatory Key Disclosure in Canada

MANDATORY KEY DISCLOSURE &
SELF INCRIMINATION IN CANADA
ANNA L. MANLEY
amanley@sampsonmcdougall.com

2
W A R N I N G:
CONTAINS PHILOSOPHY
John LockeJean Jacques Rousseau
SOCIAL CONTRACT

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Are you a pedophile?
Are you a criminal?
Did you sign a non-disclosure agreement with your client?
Did you guarantee privacy to your client?
Are you a Doctor or Lawyer with a duty to keep client’s
information conﬁdential?
Because…. privacy.
WHY ENCRYPT?

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Search or seizure
8. Everyone has the right to be secure against
unreasonable search or seizure.

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Reasonable expectation of privacy.

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“[I]t is hard to imagine a search more intrusive, extensive,
or invasive of one’s privacy than the search and seizure of
a personal computer.” - Justice Morris Fish
R v Morelli, 2010 SCC 8 at para 3

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SCC
PRIVACY TREND
2012
2013
2014
2015
R. v. Cole
R. v. Vu
R. v. Telus
R. v. Spencer
R. v. Fearon

8
SCC
PRIVACY TREND
2012
2013
2014
2015
R. v. Cole
R. v. Vu
R. v. Telus
R. v. Spencer
R. v. Fearon
R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34
Employees may have a reasonable –
though limited – expectation of privacy in
their work computer.

8
SCC
PRIVACY TREND
2012
2013
2014
2015
R. v. Cole
R. v. Vu
R. v. Telus
R. v. Spencer
R. v. Fearon
R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657
Police had warrant to search house - warrant
did not specify computers
Do you need an additional warrant to search a
computer?
Can seize the computer, but require an
additional warrant to search it.

8
SCC
PRIVACY TREND
2012
2013
2014
2015
R. v. Cole
R. v. Vu
R. v. Telus
R. v. Spencer
R. v. Fearon
R. v. TELUS Communications Co., 2013 SCC
16, [2013]
Text messages carry the same reasonable
expectation of privacy as voice conversations;
therefore, you need a wiretap authorization.

8
SCC
PRIVACY TREND
2012
2013
2014
2015
R. v. Cole
R. v. Vu
R. v. Telus
R. v. Spencer
R. v. Fearon
R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R.
212
A person has a reasonable expectation of
privacy in their anonymity online.

8
SCC
PRIVACY TREND
2012
2013
2014
2015
R. v. Cole
R. v. Vu
R. v. Telus
R. v. Spencer
R. v. Fearon
R. v. Fearon, 2014 SCC 77, [2014] S.C.R.
621
A person has an increased reasonable
expectation of privacy in their cell phone, but
police can search a cell phone incident to
arrest if they follow four rules

9
Does it matter if you encrypt your data?

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Rights and freedoms in Canada
1. The Canadian Charter of Rights and Freedoms
guarantees the rights and freedoms set out in it
subject only to such reasonable limits prescribed by
law as can be demonstrably justiﬁed in a free and
democratic society.

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Exclusion of evidence bringing administration of justice into disrepute
24(2) Where, in proceedings under subsection (1), a
court concludes that evidence was obtained in a
manner that infringed or denied any rights or freedoms
guaranteed by this Charter, the evidence shall be
excluded if it is established that, having regard to all
the circumstances, the admission of it in the
proceedings would bring the administration of justice
into disrepute.

14
SCC
PRIVACY TREND
2012
2013
2014
2015
R. v. Cole
R. v. Vu
R. v. Telus
R. v. Spencer
R. v. Fearon

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LOWER REASONABLE EXPECTATION OF
PRIVACY.
@ BORDER

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Canadian Border Services Agency (CBSA)
Powers to search both people and goods coming into the country
(includes ﬁles on your digital devices)
Customs Act, RSC 1985, c 1, s 99(1)
Ability to search “any document in any form” – including electronic
documents
Customs Act, RSC 1985, c 1, s 2(1)
Files = “goods” and CBSA has the power to search these documents
R v Leask, 2008 ONCJ 25
R v McDermin, 2008 CanLII 68135 (Ont SCJ)
R v Whittaker (2010), 946 APR 334 (NBPC)
@ BORDER

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What are they looking for?
Obscenity (Porn or Hate Literature)
Political Opinion
Copyright Infringement
@ BORDER

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How do they pick me for a search?
• Importing something the CBSA deems to be suspicious
• Travelled to and from “high risk” destinations
• Single man traveling alone
• Demonstrate “an interest in Pornography”
• Associated, or are believed to be associated, with known
importers or exporters of materials the CBSA objects to.
TARGET @ BORDER

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STANDARD @ BORDER
Reasonable & Probable Grounds

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STANDARD @ BORDER
Reasonable Suspicion

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SEARCH WITHOUT SUSPICION (HUNCH)
STANDARD @ BORDER
Reasonable Suspicion

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Suspicionless Search (Quick Look)
>> Detailed Search

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1. Take your stuff - CBSA can detain “goods” including your
electronic device and its contents.
Detentions can last for months
2. Search - Use forensic tools to ensure evidence is not corrupted or
lost (EG - “IC-What-UC”)
They can also copy everything on your electronic device (“Disc
Image”) for later inspection.
Take a Disc Image and run password-cracking software.
NOTE: CBSA has not released information on how information is
“destroyed” after it is searched and found to be legal.
HOW @ BORDER

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When you are crossing the border, if the
CBSA decides to search your electronic
devices,
there is nothing you can do about it.
@ BORDER

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You will be asked for username and password.
(CBSA policy states you are not required to give it, unless a Court
orders you to)
@ BORDER

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Detained >> Right to Remain Silent
Detained >> Lawyer
Detained >> Right to request to be taken to the senior officer on duty for him
or her to confirm whether there are reasonable grounds for the search.
Am I detained?
Questioning or luggage searching by a customs official at a border
crossing is not a “detention”
If you are taken aside and required to submit to extensive searching and
you cannot leave, you have been detained.
A search of your body must be done by a person who is the same sex as
you.
RIGHTS @ BORDER

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REALITY @ BORDER
BCCLA believes that refusing to provide a password is within your
rights under Canadian law.
NOT tested in Canadian courts (no guarantees)
Refusal >> Treated as suspicious (detailed inspection and detention of
device)
Refusal + Not Canadian >> risk denial of entry into the country
Refusal >> Delay

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Full Disc Encryption
File Encryption
Digital Steganography
OPTIONS…?

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SELF-INCRIMINATION
DO I HAVE TO PROVIDE MY ENCRYPTION KEY?

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COMMONWEALTH vs. Leon I. GELFGATT,
SJC-11358. Suffolk. Nov. 5, 2013. - June 25, 2014
Context:
Mortgage Fraud - Accused admitted to existence of
documents but not their contents
UNITED STATES

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UNITED STATES
Testimonial:
If the response requires a person “to make extensive use
of ‘the contents of his own mind,’” producing those
documents is testimonial.
Fifth Amendment: “no person … shall be compelled in any
criminal case to be a witness against himself”
Generally:
Testimonial >> CANNOT be compelled
Non-Testimonial >> CAN be compelled

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UNITED STATES
Strongbox keys - NOT testimonial
Safe combinations - Testimonial
A safe key can be compelled, but a safe combination cannot;
A ﬁngerprint that unlocks an iPhone can be compelled, but an
iPhone’s numeric password cannot.

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COMMONWEALTH vs. Leon I. GELFGATT, SJC-11358. Suffolk.
Nov. 5, 2013. - June 25, 2014
UNITED STATES
Encryption keys are protected by the Fifth Amendment
Unless you already admitted to the existence and/or authenticity
of the encrypted documents.

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Proceedings in criminal and penal matters
11. Any person charged with an offence has the right
(a) to be informed without unreasonable delay of the specific offence;
(b) to be tried within a reasonable time;
(c) not to be compelled to be a witness in proceedings
against that person in respect of the offence;
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
(e) not to be denied reasonable bail without just cause;
(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum
punishment for the offence is imprisonment for five years or a more severe punishment;
(g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under
Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;
(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or
punished for it again; and
(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of
sentencing, to the benefit of the lesser punishment.

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Life, liberty and security of person
7. Everyone has the right to life, liberty and security of
the person and the right not to be deprived thereof
except in accordance with the principles of
fundamental justice.

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R. v. Hebert, 1990 CanLII 118 (SCC), [1990] 2 S.C.R. 151 at para.
47
“... the right to silence may be postulated
to reside in the notion that a person
whose liberty is placed in jeopardy by the
criminal process cannot be required to
give evidence against himself or herself,
but rather has the right to choose
whether to speak or to remain silent.”
- Chief Justice Beverley McLachlin

CANADIAN CASES
39
2004
2010
R. v. Meron
R. c. Boudreau-Fontaine

CANADIAN CASES
39
2004
2010
R. v. Meron
R. v. Meron, [2004] P.E.I.J. No. 95
The accused was asked to provide
passwords for encrypted hard drives, but he
refused to cooperate. The case gives no
further details about the context or
consequences.

CANADIAN CASES
39
2004
2010
R. v. Meron
R. c. Boudreau-Fontaine, 2010 QCCA 1108
An accused cannot be ordered to produce
their passwords for the benefit of an
investigation against them.

R. C. BOUDREAU-FONTAINE
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Problems:
1. Quebec Case
2. s.24(2) = Contextual

NO.
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A judge orders you to provide your password or
encryption key to police.
You say “No”
Contempt of a court order + Charter Challenge

Mandatory Key Disclosure in Canada

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