Requesting the accused to provide the password for his cell phone seized upon arrest is a non-routine procedure requiring that Section 10(b) Charter rights be provided again to the accused.

R. v. Hiscock [2016] N.J. No. 447 – although a decision at the provincial court level, I think this case merits a post: a postal inspector had seized a suspicious package which he had reason to believe contained marihuana. Police went to the post office and seized the package which was addressed to the accused; the package contained 6 1/2 pounds of marihuana. The next day, police sought and obtained a General Warrant, allowing delivery of the package to the accused. The package was prepared for a controlled delivery and was returned to the post office. When the accused picked up the package at the post office, he was arrested.

The arrest was ruled lawful, after some debate. Prior to Hiscock being placed in the police vehicle, he was searched incident to arrest, at which time a cell phone was found and seized. The accused was given his rights and caution, and once back at the station, Hiscock spoke with counsel. Thereafter, an audio recorded statement was given by the accused because the video equipment was not working. The recording lasted for approximately 22 minutes and the equipment was turned off as the accused did not wish to provide any further information. The recording equipment was not turned on again during the interview. During this time, police left the room and returned with the cell phone that had been seized incident to arrest. Neither officer had searched the phone prior to this and the cell phone was password protected.

One officer testified that she asked Hiscock for the password for the phone and when doing so she advised him that if the password was not provided, the phone would have to be sent away for examination and may be returned in an unusable state. Hiscock was also advised that a warrant could be sought in any event. At the time that the discussions were taking place, including the provision of the password by Hiscock, no consent form was utilized; Hiscock was told that if he gave the password, his phone may be returned to him quicker and in a usable condition; there was some assurance by the officers that Hiscock’s level of cooperation could influence whether or not he got home that evening; and the portion of the interview, approximately 30 minutes, which was the lead up to and the actual provision of the password, was not recorded.

The Crown conceded in the case that it could not prove that the accused gave a valid consent for the search of his cell phone. It was contended, however, that proof beyond reasonable doubt was provided, establishing that the accused voluntarily provided the officers with the password for the cell phone. Provincial Court Judge Lois Skanes ruled it was not possible to examine the promises or inducements with any degree of exactitude because the discussions during most of the interview were not recorded, despite the fact that the audio recording equipment was available in the room where the accused ultimately gave up his password; this was clearly part of the interrogation of the accused. There was reason to accept that inducements were made and due to the failure of the officers to turn on the recording equipment, the extent of such inducements could not be determined. Given this, the Judge found that the Crown had not proven voluntariness beyond a reasonable doubt.

Judge Skanes cited R. v. Fearon, [2014] 3 S.C.R. 621 and applied it to the facts of this case.  She ruled that there was no evidence of any threat to public safety or to the loss of evidence requiring the prompt search of Hiscock’s phone and the search was not documented properly. Further to this, there was no evidence that the search, which was conducted after the audio recorded interview, was tailored to be restricted to “recently sent or drafted e-mails, texts, photos and the call log”. Indeed, there was no evidence presented in respect of the extent of the search of the phone. No notes were referenced detailing the portion of the cell phone data that was examined or how it was examined.

So far, it was not looking good for the prosecution. To reiterate, the Judge had concluded that the search of the cell phone which followed upon Hiscock providing the password was not incident to arrest (not per the Fearon standard). Additionally, she found that the provision of the password was not proven to have been voluntary and no valid consent for the search of the cell phone was given by Hiscock. Defence still had one argument left: that the officers ought to have re-read Hiscock his right to counsel when asking him for the password to his cell phone. The failure to do so was alleged to constitute a breach of the accused’s right to counsel under s. 10(b) of the Charter.

For the last argument, we turn to R. v. Sinclair, [2010] S.C.J. No. 35, in which the SCC ruled that for the purpose of providing guidance to investigating police officers, it was helpful to indicate situations in which it appears clear that a second consultation with counsel is so required (the categories are not closed of course): (1) new procedures involving the detainee; (2) change in jeopardy; (3) reason to question the detainee’s understanding of his/her Section 10(b) Charter rights.

Hiscock had contacted counsel after initially being offered the opportunity to do so. Having been advised by counsel not to provide information, there was continued discussion which ultimately led to Hiscock providing the password to his cell phone which facilitated the search of that phone. At para. 59:

Given the privacy issues inherent in the search of a cell phone, the decision to provide information to facilitate such a search, particularly if warrantless, is one for which an accused would require counsel in order to make an informed decision. This is particularly so if there is inculpatory evidence on the phone. The accused could not be compelled to provide the password in any event and much like participating in a line-up or submitting to a polygraph, it is not a routine procedure which would have been within the expectation of the advising lawyer at the time of the initial consultation.

In the end, Judge Skanes found that such a renewed right did arise and the police ought to have again provided the information that the right was available to Hiscock.  Finally, at para. 60:

If the search as conducted was effected under a valid warrant, then the situation in respect of the provision of the password may be different. In that case, the search itself would be lawful and would have been able to be carried out without the cooperation of the accused. Providing the password would then merely be protecting the cell phone as an asset, much like opening a door in the face of a warrant rather than having it broken down.

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