Forced To Give Up Your Phone Password

March 5, 2015 Michael Dyck

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:

The arrest must be lawful
The search must really be incidental to arrest (to protect police/accused/public, preserve evidence, discover evidence)
Nature of search must be tailored to its purpose (normally only looking at recently sent and received information)
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 TomRees.ca.

Winnipeg Police Testing Body Cameras

February 21, 2015 Michael Dyck

The Winnipeg Police Service is looking at testing body cameras on 800 officers but it is not clear when this will begin. Click here to read the article on the Winnipeg Free Press. It will be a pilot program that will determine what sort of policies and rules should be in place around the use of body cameras with police officers in the city. Some policing agencies in the United States have already tested the idea of each officer wearing a small camera and then video recording interactions with citizens.

As a criminal lawyer, I would encourage this program to move forward. It would ensure police officers are following the Charter of Rights and Freedoms and be on their best behaviour. It would also help protect the police from false accusations of excessive force or inappropriate conduct. Everyone typically acts better when they know they are being watched, it is called the Hawthorne Effect. It would help me get to the bottom of cases quicker because I could show my clients the video and then confirm their version of events.

About the author

Winnipeg Drug Treatment Court - Back On

January 23, 2015 Michael Dyck

It was earlier in the Spring of 2014 that the Winnipeg Drug Treatment Court was in jeopardy. There were issues around funding and somehow I was thrust into the spotlight. First, James Turner interviewed me for a story he was writing about it, and then I appeared on national tv for Canada AM. I was thrilled to be part of the news that was bringing this attention to the public.

I was absolutely thrilled when I found out that funding issues have been sorted and the program will be able to continue. Here's a link to the Winnipeg Free Press Story: Provincial court for drug addiction to be reborn.

I have worked with the Crown Attorneys, paralegals, counsellors, and staff with the Drug Treatment Court and I am not only impressed by their credentials, but by their passion for what they are doing. Helping people overcome addictions issues which was the root cause of their criminal offending. Their recidivism rate is SIGNIFICANTLY better than offenders who are simply sentenced to jail and the cost of the program per applicant is also SIGNIFICANTLY less than the cost to house an offender in custody. I love Winnipeg Drug Treatment Court and am very pleased it is back on!

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Smartphone? Set Up A Passcode Now

November 10, 2014 Michael Dyck

Today, more and more of us are carrying around Smartphones. I know my iPhone is usually within arm's reach. Have you ever thought about how much personal information is stored in your phone? Names of contacts, phone records, and text message conversations. So much of our conversations are now happening over text message which is incredibly convenient but it also documents and logs information in your phone the way a telephone conversation doesn't. Oh, and internet browsing history is saved on your phone too.

If you own a Smartphone, you need to make sure you are protecting your data from unwanted eyes. In my experience, police officers definitely meet the criteria of "unwanted eyes." But if I have nothing to hide, why do I need a passcode? The simple answer is that you should value your privacy, whether the information you want to keep private is a record of your criminal dealings or not. Most importantly, if you have any information on your phone that you don't want a complete stranger to see, you need a passcode.

Here's another reason, if the police can access your phone, they may be able to use it to further their investigation or for a more nefarious reason. I had one case where a client was under arrest for a drinking and driving. He was handcuffed and placed in the rear of a cruiser car. His Blackberry was in his vehicle, which was now parked on the side of the road. He was able to escape from the cruiser car and and he ran away, cuffs and all. At some point after his escape, his Blackberry accessed his FaceBook page and posted that he was a jerk. It didn't really say jerk, but something along those lines - just a bit more crass. I suppose it is possible the tow truck driver could've accessed his phone but it seems more likely it was the police officers. Was he being a jerk... yeah sure, he escaped lawful custody. Should someone else have used his phone and posted that on FaceBook... no. Absolutely not. And to be honest, there isn't a lot he can do after the fact to get justice from the police officers. With any anecdote I tell involving police misconduct, I like to always state the following: police officers are people and like people there are always good ones and bad ones. Never let one bad egg spoil the rest. I know many outstanding officers who work hard to uphold the rights of citizens and I appreciate they have a job not many of the rest of us can or want to do.

I also recommend using a passcode lock that uses either numbers or letters. If a picture of your face can unlock your phone (like on some Android devices) or your fingerprint on the new iPhones, it is possible to unlock your phone even if you don't want to unlock your phone. Someone can just place your finger on the phone or hold it near your face and they now have access to everything. Use a passcode that is stored in your head. And don't fall prey to tricks from police officers like, "You have to tell us your passcode" or "We will find out all the information anyway." If the police think they can bypass Blackberry or Apple's security, let them put in the effort of trying. Don't just hand over your passcode.

About the author

Are you guilty?

October 7, 2014 Michael Dyck

Oftentimes, when I sit down with my clients for a first meeting, they have already decided that they must plead guilty. After all, the police wouldn't have charged them if they weren't in the wrong, right? My job is to look closely at the case and determine if there are facts that would prove a criminal act occurred and if there are issues that could be raised at trial that would raise a reasonable doubt about guilt. In more simple terms, there are two types of guilty: factual guilt and legal guilt.

Factual Guilt

Factual guilt means that you actually broke the law and committed the act. For example, if I was to punch Jerry in the face, I would be factually guilty. Sometimes, people are charged with a crime when they are factually innocent.

I had a case once where the police charged a client with unsafe storage of a firearm or ammunition. The client had a box of shotgun shells in his room but he didn't own a firearm, his roommate did though. The argument by the police and the Crown Attorney was that the ammunition was stored unsafely. I examined the Criminal Code along with the Firearms Act and Regulations and I did not think the law made it illegal to have shotgun shells in a bedroom. I did not think the client was factually guilty in that case. Ultimately, the Crown Attorney dropped those charges after some significant pressure from me. This was a case where a person did nothing wrong but was still charged with a crime.

Legal Guilt

Legal guilt means can the Crown Attorney prove beyond a reasonable doubt that you are criminally responsible. In some cases, the Crown Attorney may not be able to prove you are guilty in court.

1. Witnesses - the Crown Attorney must be able to have all of the necessary witnesses or complainants attend court. If a key witness or complainant moves away or loses contact with the Crown Attorney's office, it may become impossible to prove the case in court. Having said that, it is a criminal offence (and a very serious one at that) to try and pressure or influence a witness from attending court. If you do that, you could be charged with obstruction of justice and face a serious jail sentence. Basically, the justice system makes it clear that witness tampering is serious and will be met with serious penalties.

2. Breach of Charter rights - we have the Canadian Charter of Rights and Freedoms in Canada, often called "the Charter" for short. It contains legal protections to people in Canada in sections 7 to 14 (link) like the right to be free from unreasonable search and seizure and the right to obtain and instruct a lawyer without delay upon detention or arrest. If the police conducted their investigation improperly and did not follow one of the rules in the Charter, you can apply to the court to have evidence excluded (like a statement or breath samples in DUI cases) or you can apply to have the court enter a judicial stay of proceedings (drop the charges), but that is quite rare. For example, if you are facing a charge of simple possession of marijuana but the drugs are excluded by the judge after a Charter breach is argued, the Crown Attorney is then unable to prove its case.

3. Active defences - in some cases, you can argue an active defence like self-defence or necessity where you agree as to the facts of what happen but that you are not criminally responsible because you had a defence. For example, if I punched Jerry in the face because he was pointing a loaded gun at me, I think using a punch to combat potentially deadly force would be a great example of self-defence. It would also make me incredibly brave, or foolish, or both. To be frank, these cases are quite rare. In many cases where people claim it was self-defence, the legal test says that they used too much force and are guilty because they went overboard. It is important to ask a lawyer if an argument of self-defence could be possible or not. Necessity defences are very tough because many judges would look for alternative non-criminal choices that would have been available and agree you could have done something else.

Where The Two Meet