Forced To Give Up Your Phone Password

Just a few months ago, the Supreme Court in Canada decided that police are allowed to search your cell phone or smartphone when they are arresting you. R. v. Fearon, 2014 SCC 77 held that the police can search your phone as part of a search incident to arrest but they put rules in place so it does not violate your right to be free from unreasonable search and seizure as the Charter of Rights and Freedoms requires.  The rules the Supreme Court listed are:

  1. The arrest must be lawful
  2. The search must really be incidental to arrest (to protect police/accused/public, preserve evidence, discover evidence)
  3. Nature of search must be tailored to its purpose (normally only looking at recently sent and received information)
  4. Police must take detailed notes

Just yesterday, there as a news story about a Quebec resident who refused to give his smartphone password while he was at the airport to Canada Border Services Agency.  Read the full story here. His case is a bit different because the CBSA has different powers than a police officer, but it raises an excellent question.

Should you be required to provide your cell phone password to the authorities so they can unlock your phone and view the information on it?

I wrote a paper about this exact issue when I was in law school but in my paper I looked at encrypted files on a computer and whether or not the police should be able to force you to provide your password to view the files.  There is a law in the United Kingdom that makes it a criminal offence to not provide a password.  The reason behind the law is to stamp out potential terrorists or people possessing child pornography.  Now that so much information is stored on computers (especially a personal computer or cell phone), it opens up the floodgate of what the authorities could view – not necessarily that you have anything to hide, you just do not want the whole world to see it either.

I would be opposed to any law that would require you to provide your password to the authorities or face criminal charges.  I value personal privacy and I’m sure many Canadians value their privacy too.

About the author

Michael Dyck is a partner at Rees & Dyck Criminal Defence. He represents clients primarily from Winnipeg, Steinbach, and rural Manitoba. He has extensive experience helping people charged with criminal offences and focuses on building legal strategy with clients. To read more of his articles, please visit his partner's website