The Right to Silence Carries the Right to Keep Passwords Secret
The right to silence is a fundamental principle of Canadian criminal law that protects suspects and accused persons from being compelled to incriminate themselves. It also carries the right to keep electronic device passwords secret and, as the Ontario Court of Appeal recently affirmed in R. v. O’Brien, 2023 ONCA 197 (“O’Brien”), it prevents law enforcement from using pressure tactics to mislead suspects into believing that they are obliged to disclose their passwords. The decision is a rebuke of law enforcement’s practice of taking advantage of the psychological impact of raids in order to pressure suspects, in the heat of the moment, into “volunteering” their passwords without concern for their informed consent.
Factual Background and Trial Decision
Mr. O’Brien and his wife were awakened in the morning by banging on their door. O’Brien opened the door to find three police officers equipped with a warrant to search his home and electronic devices located therein. Almost immediately upon entry, the police officers asked O’Brien for the passwords to his smartphone and computer, without informing him of his right to refuse or the consequences of his compliance. The police then accessed the password-protected smartphone and computer where it found incriminating evidence against O’Brien.
At no time did the police inform O’Brien of his rights and options, including his right to leave his house during the search, his level of freedom within his house and the right to call counsel for legal advice.
At trial, it was demonstrated that “upon executing search warrants for electronic devices, police routinely ask for passwords without explaining that it is unnecessary to comply, and without explaining what the consequences of compliance would be” (para. 11). The trial judge expressed concern about the “apparent cavalier attitude” of the police in obtaining passwords, and noted that this was a “serious matter” that needed to be addressed by the police service (para. 13).
In the end, the trial judge excluded the evidence from the smartphone, finding that the police violated O’Brien’s right to silence and his right to be free from unreasonable search and seizure under sections 7 and 8 of the Charter of Rights and Freedoms (the “Charter”). However, she refused to exclude the evidence found on the computer, accepting the police testimony that the password used to access the computer was also found on a piece of paper already in front of the computer when the police arrived. As a result, the computer data was admitted into evidence, along with data found on a USB thumb drive (not password-protected) and photographs, and O’Brien was found guilty of cybercrimes.
Appellate Rebuke of a Systemic Charter Violating Practice
The Ontario Court of Appeal disagreed with the trial judge’s conclusions on the admissibility of the computer evidence. It held that the availability of alternative modes of discovering the evidence did not affect the seriousness of the police misconduct, which the Court described as “deliberate”, “systemic” and “willful”. The intentional and systemic nature of the practice situated the Charter breach “at the most serious end of the spectrum” (para. 36).
To quote from excerpts of the appellate decision:
 In this case, the trial judge made strong findings about what can only be characterized as a deliberate pattern of systemic misconduct by the cybercrime officers involved in Mr. O’Brien’s investigation. As I have indicated, the trial judge found that the officers involved in the search understood the heightened expectation of privacy in electronic devices and in passwords for such devices, yet routinely asked for passwords while acting under the compulsory authority of search warrants, without concern for the validity of the consent they were seeking. Not surprisingly, given this finding, the trial judge expressed concern about the “apparent cavalier attitude” of the police in obtaining passwords and noted that this “is a serious matter which needs to be addressed by the police service.” […]
 The appeal Crown sought to defend the trial judge’s characterization of the seriousness of the s. 8 breach as minimal by noting that the police did not need the password to access the Dell computer, thereby reducing the seriousness of the privacy breach. Even if this was her thinking, it was in error. The fact that evidence was discoverable without a breach is relevant and potentially important to the second Grant factor – the impact of the breach on the Charter‑protected interests of the accused – but has nothing to do with the seriousness of the police misconduct. The seriousness of the breach is an evaluation of the mode that was used for the purpose of acquiring the evidence, a consideration entirely unaffected by the availability of alternative modes of discovering the evidence. Moreover, it is illogical to think that discoverability in the instant case somehow lessens the seriousness of a systemic course of Charter violations over multiple cases. […]
 The primary impact of the s. 10(b) breach, however, arises from the fact that Mr. O’Brien was conscripted to assist in the investigation against him by providing his passwords, without having had a reasonable opportunity to consult counsel. As I have explained, the police wanted the password as a means of gaining access to incriminating information. By asking Mr. O’Brien to provide that password they were seeking self-incriminating information from him. The indignity of being conscripted to assist in one’s own incrimination in this way, in violation of s. 10(b) of the Charter, is not an insignificant deprivation of Mr. O’Brien’s Charter-protected interests, even in the absence of a causal connection between that breach and the evidence sought to be admitted.
As a result, the Court excluded the computer data from the evidence, set aside the conviction and ordered a new trial.
O’Brien marks an important development in the law of electronic search and seizure. It has been understood, at least since the Québec Court of Appeal’s decision in R. v. Boudreau-Fontaine, 2010 QCCA 1108, that search warrants cannot order a suspect to disclose their electronic device passwords to law enforcement. O’Brien goes further and bars law enforcement from taking advantage of the psychological impact of police raids to induce suspects to disclose their passwords. In doing so, the decision acknowledges that the inherently coercive nature of police raids may diminish or even nullify the voluntariness of incriminating disclosures during warrant execution. As the Supreme Court of Canada stated in R. v. Lafrance, 2022 SCC 32, referred to in O’Brien: “[i]n the heat of the moment, it is not always easy for ordinary citizens, who may be uninformed of their rights or the scope of the police’s powers, to know whether they have a choice to comply with a request by the police” (para. 21).
It must be noted that O’Brien was decided in the context of a search warrant executed against an individual suspect. Other considerations may apply where the target is an organization, especially where the search warrant orders the IT department to assist law enforcement in accessing computer systems.
* Drafted with the assistance of AI.
R. v. O’Brien, 2023 ONCA 197
Court File No: C69988
Date of Decision: March 22, 2023