R.v. Talbot 2017 ONCJ 814 – Talbot was arrested for second degree murder and a cellphone was located on his person. The police obtained a search warrant authorizing them to seize and forensically examine the cellphone. However, the phone was locked using a swipe pattern and the attempts to bypass the security had failed. The only other possible method to enter the phone offered no guarantees and risked causing permanent loss of the data and potential evidence from the cellphone. The Crown sought an order pursuant to section 487.02 of the Criminal Code, requiring Talbot to assist the police in accessing his cellphone by providing the screen lock passcodes or PIN codes.
The Defence took the position that the mere act of compelling an accused to assist the police would be in violation of the accused’s section 7 Charter rights. The Defence submitted that the assistance order would compel Talbot to be used as an instrument of the state in order to obtain potentially incriminating evidence to bolster the case against him. The Defence further submitted that the swipe pattern was a product of Talbot’s thought process and provided the gateway to stored information which was intensely personal and would reveal intimate details about Talbot’s life.
Section 487.02 of the Criminal Code states:
“If an authorization is given under section 184.2, 184.3, 186 or 188 or a warrant is issued under this Act, the judge or justice who gives the authorization or issues the warrant may order a person to provide assistance, if the person’s assistance may reasonably be considered to be required to give effect to the authorization or warrant.”
The word “person” is not defined in the Criminal Code. After carefully considering Canadian jurisprudence in this area of law, the ONCJ was not prepared to find that accused persons were specifically excluded from being a “person” in section 487.02 of the Criminal Code. Parliament could have specifically excluded targets of investigations or accused persons, but chose not to do so. Simply because the section had traditionally been used for third parties or non-targets did not automatically exclude an accused person from consideration. However, compelling Talbot to assist the police by providing his swipe password infringed his section 7 Charter rights. An assistance order would breach his right to choose whether to remain silent or communicate with the police. Both the compelled participation and the ramifications for failing to comply would have a significant impact on Talbot’s life, liberty, and security of the person.