514 THE ADVOCATE
VOL. 77 PART 4 JULY 2019
debated whether mandating backdoors for law enforcement would compromise
the benefits of encryption.9 With that debate at an impasse, police and
prosecutors have turned to password compulsion, giving rise to constitutional
Case law and scholarship in Canada and the United States divide along
clear lines.10 We aim to briefly explain strong arguments for and against
whether compelling a password or plaintext (the decrypted file or device)
would violate the Charter.
Briefly, one side of the debate maintains that a law compelling accused
persons to provide their password would violate the right against self-
incrimination and the right to silence, because unlike a fingerprint, DNA or
breath sample, a password is testimonial in nature. A compulsion order forces
a person to “speak their mind” for the purpose of aiding the prosecution in
producing a case to meet. Opponents argue that password compulsion is constitutional
because disclosing a password is testimonial in only a perfunctory
sense, and since accused persons do not create the plaintext by divulging
their password, but only provide access to it, the plaintext is not derivative
evidence that warrants immunity.
We note weaknesses in both arguments. The two contentious points are
whether a password is testimonial in a sense that should engage the right
against self-incrimination, and if so, how that right should be balanced
against the state’s interest in prosecuting cases on their merits.
THE FIRST VIEW: PASSWORD COMPLUSION IS UNCONSTITUTIONAL
The two main sources for this argument are law scholar N. Dalla Guarda’s
pioneering 2014 article in the Criminal Law Quarterly11 and Downes J.’s reasons
in Shergill. We draw here primarily on Downes J.’s reasons, given their
application to particular facts.
The Crown in Shergill sought an order under s. 487.02 of the Criminal
Code compelling the accused to unlock his phone. Section 487.02 states:
If … a warrant is issued under this Act, the judge or justice who … issues
the warrant may order a person to provide assistance, if the person’s
assistance may reasonably be considered to be required to give effect to
the authorization or warrant.
The court dismissed the application for an assistance order, holding that
although the preconditions under s. 487.02 were met, granting the order
would involve a breach of s. 7 of the Charter.12
Limiting its Charter submissions to the right against self-incrimination,
the Crown argued that a password compulsion order under s. 487.02 would
be Charter-compliant because it would only compel Mr. Shergill to give