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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
3
Are you a pedophile?
Are you a criminal?
Did you sign a non-disclosure agreement with your client?
Did you guarantee pri...
4
SEARCH & SEIZURE
5
Search or seizure
8. Everyone has the right to be secure against
unreasonable search or seizure.
6
Reasonable expectation of privacy.
7
“[I]t is hard to imagine a search more intrusive, extensive,
or invasive of one’s privacy than the search and seizure of...
8
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...
8
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. Vu, 2013 SCC 60, ...
8
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. TELUS Communicati...
8
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. Spencer, 2014 SCC...
8
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. Fearon, 2014 SCC ...
8
SCC
PRIVACY TREND
2012
2013
2014
2015
R. v. Cole
R. v. Vu
R. v. Telus
R. v. Spencer
R. v. Fearon
9
Does it matter if you encrypt your data?
10
11
12
Rights and freedoms in Canada
1. The Canadian Charter of Rights and Freedoms
guarantees the rights and freedoms set out...
13
Exclusion of evidence bringing administration of justice into disrepute
24(2) Where, in proceedings under subsection (1...
14
SCC
PRIVACY TREND
2012
2013
2014
2015
R. v. Cole
R. v. Vu
R. v. Telus
R. v. Spencer
R. v. Fearon
15
@ BORDER
16
ALAIN PHILIPPON
17
LOWER REASONABLE EXPECTATION OF
PRIVACY.
@ BORDER
18
Canadian Border Services Agency (CBSA)
Powers to search both people and goods coming into the country
(includes files on...
19
What are they looking for?
Obscenity (Porn or Hate Literature)
Political Opinion
Copyright Infringement
@ BORDER
20
How do they pick me for a search?
• Importing something the CBSA deems to be suspicious
• Travelled to and from “high r...
21
STANDARD @ BORDER
21
STANDARD @ BORDER
Reasonable & Probable Grounds
21
STANDARD @ BORDER
Reasonable & Probable Grounds
21
STANDARD @ BORDER
Reasonable & Probable Grounds
Reasonable Suspicion
21
STANDARD @ BORDER
Reasonable & Probable Grounds
Reasonable Suspicion
21
SEARCH WITHOUT SUSPICION (HUNCH)
STANDARD @ BORDER
Reasonable & Probable Grounds
Reasonable Suspicion
22
Suspicionless Search (Quick Look)
>> Detailed Search
23
1. Take your stuff - CBSA can detain “goods” including your
electronic device and its contents.
Detentions can last for...
24
When you are crossing the border, if the
CBSA decides to search your electronic
devices,
there is nothing you can do ab...
25
You will be asked for username and password.
(CBSA policy states you are not required to give it, unless a Court
orders...
26
Detained >> Right to Remain Silent
Detained >> Lawyer
Detained >> Right to request to be taken to the senior officer on ...
27
REALITY @ BORDER
BCCLA believes that refusing to provide a password is within your
rights under Canadian law.
NOT teste...
28
Full Disc Encryption
File Encryption
Digital Steganography
OPTIONS…?
29
SELF-INCRIMINATION
DO I HAVE TO PROVIDE MY ENCRYPTION KEY?
30
31
COMMONWEALTH vs. Leon I. GELFGATT,
SJC-11358. Suffolk. Nov. 5, 2013. - June 25, 2014
Context:
Mortgage Fraud - Accused ...
32
UNITED STATES
Testimonial:
If the response requires a person “to make extensive use
of ‘the contents of his own mind,’”...
33
UNITED STATES
Strongbox keys - NOT testimonial
Safe combinations - Testimonial
A safe key can be compelled, but a safe ...
34
COMMONWEALTH vs. Leon I. GELFGATT, SJC-11358. Suffolk.
Nov. 5, 2013. - June 25, 2014
UNITED STATES
Encryption keys are ...
35
36
Proceedings in criminal and penal matters
11. Any person charged with an offence has the right
(a) to be informed witho...
37
Life, liberty and security of person
7. Everyone has the right to life, liberty and security of
the person and the righ...
38
R. v. Hebert, 1990 CanLII 118 (SCC), [1990] 2 S.C.R. 151 at para.
47
“... the right to silence may be postulated
to res...
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...
CANADIAN CASES
39
2004
2010
R. v. Meron
R. c. Boudreau-Fontaine
CANADIAN CASES
39
2004
2010
R. v. Meron
R. c. Boudreau-Fontaine
R. c. Boudreau-Fontaine, 2010 QCCA 1108
An accused cannot ...
CANADIAN CASES
39
2004
2010
R. v. Meron
R. c. Boudreau-Fontaine
R. C. BOUDREAU-FONTAINE
40
Problems:
1. Quebec Case
2. s.24(2) = Contextual
41
NO.
42
A judge orders you to provide your password or
encryption key to police.
You say “No”
Contempt of a court order + C...
43
Not worth it. RIGHTS!
44
WHAT WOULD I DO?
45
QUESTIONS
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Mandatory Key Disclosure and Self Incrimination in Canada

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This presentation was given by Anna Manley at the Atlantic Security Conference on April 16, 2015. The content addresses the rights of Canadians at the Canadian border and at home in the context of informational privacy. It attempts to answer the question: Can a government agency compel me to give up my password or encryption key?

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Mandatory Key Disclosure and Self Incrimination in Canada

  1. 1. MANDATORY KEY DISCLOSURE & SELF INCRIMINATION IN CANADA ANNA L. MANLEY amanley@sampsonmcdougall.com
  2. 2. 2 W A R N I N G: CONTAINS PHILOSOPHY John LockeJean Jacques Rousseau SOCIAL CONTRACT
  3. 3. 3 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?
  4. 4. 4 SEARCH & SEIZURE
  5. 5. 5 Search or seizure 8. Everyone has the right to be secure against unreasonable search or seizure.
  6. 6. 6 Reasonable expectation of privacy.
  7. 7. 7 “[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
  8. 8. 8 SCC PRIVACY TREND 2012 2013 2014 2015 R. v. Cole R. v. Vu R. v. Telus R. v. Spencer R. v. Fearon
  9. 9. 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.
  10. 10. 8 SCC PRIVACY TREND 2012 2013 2014 2015 R. v. Cole R. v. Vu R. v. Telus R. v. Spencer R. v. Fearon
  11. 11. 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.
  12. 12. 8 SCC PRIVACY TREND 2012 2013 2014 2015 R. v. Cole R. v. Vu R. v. Telus R. v. Spencer R. v. Fearon
  13. 13. 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.
  14. 14. 8 SCC PRIVACY TREND 2012 2013 2014 2015 R. v. Cole R. v. Vu R. v. Telus R. v. Spencer R. v. Fearon
  15. 15. 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.
  16. 16. 8 SCC PRIVACY TREND 2012 2013 2014 2015 R. v. Cole R. v. Vu R. v. Telus R. v. Spencer R. v. Fearon
  17. 17. 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
  18. 18. 8 SCC PRIVACY TREND 2012 2013 2014 2015 R. v. Cole R. v. Vu R. v. Telus R. v. Spencer R. v. Fearon
  19. 19. 9 Does it matter if you encrypt your data?
  20. 20. 10
  21. 21. 11
  22. 22. 12 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.
  23. 23. 13 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.
  24. 24. 14 SCC PRIVACY TREND 2012 2013 2014 2015 R. v. Cole R. v. Vu R. v. Telus R. v. Spencer R. v. Fearon
  25. 25. 15 @ BORDER
  26. 26. 16 ALAIN PHILIPPON
  27. 27. 17 LOWER REASONABLE EXPECTATION OF PRIVACY. @ BORDER
  28. 28. 18 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
  29. 29. 19 What are they looking for? Obscenity (Porn or Hate Literature) Political Opinion Copyright Infringement @ BORDER
  30. 30. 20 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
  31. 31. 21 STANDARD @ BORDER
  32. 32. 21 STANDARD @ BORDER Reasonable & Probable Grounds
  33. 33. 21 STANDARD @ BORDER Reasonable & Probable Grounds
  34. 34. 21 STANDARD @ BORDER Reasonable & Probable Grounds Reasonable Suspicion
  35. 35. 21 STANDARD @ BORDER Reasonable & Probable Grounds Reasonable Suspicion
  36. 36. 21 SEARCH WITHOUT SUSPICION (HUNCH) STANDARD @ BORDER Reasonable & Probable Grounds Reasonable Suspicion
  37. 37. 22 Suspicionless Search (Quick Look) >> Detailed Search
  38. 38. 23 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
  39. 39. 24 When you are crossing the border, if the CBSA decides to search your electronic devices, there is nothing you can do about it. @ BORDER
  40. 40. 25 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
  41. 41. 26 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
  42. 42. 27 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
  43. 43. 28 Full Disc Encryption File Encryption Digital Steganography OPTIONS…?
  44. 44. 29 SELF-INCRIMINATION DO I HAVE TO PROVIDE MY ENCRYPTION KEY?
  45. 45. 30
  46. 46. 31 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
  47. 47. 32 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
  48. 48. 33 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.
  49. 49. 34 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.
  50. 50. 35
  51. 51. 36 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.
  52. 52. 37 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.
  53. 53. 38 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
  54. 54. CANADIAN CASES 39 2004 2010 R. v. Meron R. c. Boudreau-Fontaine
  55. 55. 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. R. c. Boudreau-Fontaine
  56. 56. CANADIAN CASES 39 2004 2010 R. v. Meron R. c. Boudreau-Fontaine
  57. 57. CANADIAN CASES 39 2004 2010 R. v. Meron R. c. Boudreau-Fontaine R. c. Boudreau-Fontaine, 2010 QCCA 1108 An accused cannot be ordered to produce their passwords for the benefit of an investigation against them.
  58. 58. CANADIAN CASES 39 2004 2010 R. v. Meron R. c. Boudreau-Fontaine
  59. 59. R. C. BOUDREAU-FONTAINE 40 Problems: 1. Quebec Case 2. s.24(2) = Contextual
  60. 60. 41
  61. 61. NO. 42 A judge orders you to provide your password or encryption key to police. You say “No” Contempt of a court order + Charter Challenge
  62. 62. 43 Not worth it. RIGHTS!
  63. 63. 44 WHAT WOULD I DO?
  64. 64. 45 QUESTIONS

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