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Password Rights? Police want your password.

Police Want Your Cell Phone Password

On August 16, 2016, the Canadian Association of Chiefs of Police passed a resolution calling for  a legal measure to unlock digital devices.  Police claim that this resolution is necessary due to high levels of criminal activity being stored and encrypted on cellular devices.  Currently, there is nothing legislated in Canadian law that forces anyone to provide their password to law enforcement for their digital device.

RCMP Assistant Commissioner, Joe Oliver, made several statements regarding the urgency to attack this policy.  Oliver states:

“From child abusers to mobsters — [they] are operating online in almost complete anonymity with the help of tools that mask identities and messages, a phenomenon police call “going dark.”

“The victims in the digital space are real… Canada’s law and policing capabilities must keep pace with the evolution of technology.”

Opposing the resolution, David Christopher, a spokesman for OpenMedia, a group that keeps the Internet surveillance free, claims that the Chiefs proposed scheme is disproportionate because unlocking someone’s laptop, unlocks “the key to [their] whole life”.

The federal government has started looking at issues of cybersecurity that will balance issues of privacy and online freedoms of Canadians.

password rights police search

Background on Canadian Privacy Law

R v Spencer was a landmark decision by the Supreme Court of Canada in 2014 that ruled that individuals have a reasonable expectation of privacy in Internet usage information.  This meant that law enforcement agencies that wish to acquire subscriber information must obtain a warrant.  Prior to this decision, law enforcement were simply able to request the information from Internet providers without a warrant.

In Spencer, the Supreme Court of Canada rejected the argument that Canada’s Personal Information Protection and Electronic Documents Act (“PIPEDA”) allowed Internet service providers to provide subscriber information with a a simple request.

Following the ruling of this case, Spencer was hailed by privacy law advocates as a monumental shift towards establishing meaningful protection of privacy and fundamental notions of liberty and human rights.  However, law enforcement worries and argues that this decision creates new challenges for protecting potential child victims, specifically in the realm of child pornography.

Looking Ahead

The issue of privacy and the Internet is nothing new.  Since the advent of the Internet, there has been a constant balancing act between the privacy interests of individuals and the rights of law enforcement.  If law enforcement are granted the right to access an accused’s password without consent of the individual, it will no doubt be the subject of arguments infringing under the Charter of Rights and Freedoms.

We Can Help

Have you been part of a police investigation where law enforcement has demanded the password to your electronic device?  Do you have questions regarding cellphone or computer searches? If so, trust the criminal law experts at Smordin Law.  We are available to answer all your questions regarding PIPEDA, the Charter of Rights and Freedoms and the Criminal Code.

Subpoena – Whats is it? Learn the facts.

What is a Subpoena?

A subpoena is an order made by the court compelling a person to appear at a specific time and place to give evidence.  Section 700(1) of the Criminal Code states that someone subpoenaed may be required to bring documents or other items in their possession to court.  Section 700(2) states that “a person who is served with a subpoena under this Part shall attend and shall remain in attendance throughout the proceedings unless he is excused by the presiding judge, justice or provincial judge”.

Who Can Serve Subpoenas?

Section 701 of the Criminal Code outlines the service of subpoenas.  Service is made by a peace officer if the witness is inside the province where the court proceedings will take place.  This section requires that service of the subpoena(s) be made personally.  If the person cannot be found, the subpoena may be left at the person’s last known address with someone who appears to be at least 16 years of age (ss. 701(1) and 509(2)).  If the person subpoenaed lives within Canada but outside of the province, a subpoena is issued under s. 699(2)(b).  This also must be served personally.

What if the Witness Refuses to Answer Questions?

As stated above, a subpoena requires that the witness attend court at a specific time and place until the person is excused by the court.  When a witness attends court but refuses to be sworn, produce evidence, or documents, the witness may be subject to penalties.  At a preliminary hearing, such a witness may be imprisoned for up to eight days, following which the witness may again be imprisoned for eight days for again failing to comply (s. 703).  At trial, if a witness fails to answer questions or produce evidence when ordered by a subpoena, they may be sanctioned under ss.9-10 of the Criminal Code for contempt of court.

Can a Subpoena be Quashed?

A motion may be brought to quash a subpoena by defence counsel, the Crown, or by the witness.  The onus is on the party that initiated the subpoena to show why the witness is likely to give relevant evidence.  The Superior Court of Justice has inherent jurisdiction to supervise the lower courts.  During a trial, the presiding judge may hear a motion to excuse a witness on the basis that the witness does not have relevant evidence to present.

Generally, a motion to quash is based on a witness not being likely to give relevant evidence, however, there are other grounds to have a witness excused.  Examples of being subpoena being quashed are if: 1) the subpoena amounts to an abuse of process; 2) the witness is not compellable; 3) the evidence is privileged; 4) the proceedings are without jurisdiction; and 5) the subpoena would give rise to a violation of the Charter of Rights and Freedoms.

Material Witness Warrants

A material witness warrant is issued when a subpoena alone is not enough to compel a witness to court.  When it is shown that a witness will not attend court through subpoena alone, police are given the power to arrest a person that has material evidence to present in court.

There are three types of material witness warrants.  First, the same court that has the authority to issue a subpoena may issue a material witness warrant.  When such a warrant is issued by a provincial judge, the warrant is effective throughout the province.  When the warrant is issued by a Superior Court judge of an Appellate Court, it is effective throughout Canada.  Second, when an accused is at the end of a preliminary inquiry and enters into a recognizance to give evidence at trial and is shown to have absconded, the court may issue a material witness warrant.  Last, when a witness that has already been subpoenaed, but fails to appear or who appears but fails to re-attend court, may be the subject of a material witness warrant.

Smordin Law Can Help

Have you been subpoenaed? Do you have questions about the criminal law process? If so, contact the expert legal team at Smordin Law.  We are here for all your needs and legal services.


Conditional Discharge and Suspended Sentences

The terms Absolute discharge, conditional discharge, and suspended sentence are amongst the lightest possible sentences an accused can receive. They are generally given to an accused who is alleged to have committed a crime which was not significantly serious.

What is an Absolute Discharge?

An absolute discharge is the lightest sentence an adult offender can receive. A finding of guilt is made, but no conviction is registered, and the accused must not follow any probation conditions. The discharge will remain on the accused’s criminal record for a period of one year, after which it will be automatically removed, without need of applying for a record suspension (pardon).

It is important to note that even though an absolute discharge does not result in a criminal record, the individual’s arrest record still exists, along with related court documents. This means that if a potential employer does a criminal background check for a potential employee, the potential employee’s arrest record will still appear, and possibly hinder that individual’s hiring potential. It is imperative to ensure that all documents are fully destroyed following a conditional discharge. This can be done through the RCMP’s purge and file destruction process.

What is a Conditional Discharge?

Like an absolute discharge, a conditional discharge is when a finding of guilt is made, but the accused remains unconvicted. The difference between conditional discharges and absolute discharges is that conditional discharges carry a probation period of one to three years. After the probation period is complete, the incident will be removed from the individual’s criminal record. No record suspension application is needed.

Also akin to an absolute discharge, arrest records and court documents remain in their respective systems, unless the individual to which they belong requests their deletion.

What is a Suspended Sentence?

A suspended sentence is similar to an absolute discharge and conditional discharge in that the accused receives probation for a minimum of one year. But of these three sentencing scenarios, a suspended sentence is the most severe because a conviction is registered against the accused. This conviction will also result in a criminal record. However, the accused can, at a later date, apply for a record suspension.

conditional discharge


Bail Conditions – Can they be changed?

Bail Conditions: In Brief

If someone has a matter making its way through the criminal justice system, there is a possibility that they will be released from custody after their initial arrest pursuant to bail conditions. These conditions impose certain restrictions on the individual for the duration of their matter and can include curfews, non-association with certain other individuals, and the requirement to live with a surety (a person agrees to oversee the accused while their matter is before the court).

A person released on bail is released under a document called a recognizance, which includes the terms the accused must follow, and has the force of law for the accused. Thus, if the accused breaches any of the terms of their recognizance, they have broken the law.

What is a Variation?

There are situations where the conditions of an individual’s bail release may need to be changed. There are many reasons for this, including a change in personal circumstances, an error or oversight on the original recognizance, or because the recognizances of the accused and one or more of their co-accused do not have the same conditions, which can lead to unfair results.

Changing the conditions of a recognizance is called a bail variation. The proposed changes must be approved by a Crown and a justice of the peace before the conditions can be varied. Typically, counsel for the accused will begin the process by filling out the necessary paperwork.

bail conditionsHow is a Bail Variation Different From a Bail Review?

A bail variation is a modification of existing bail conditions. A bail review is an application made by either the accused or the Crown to review the bail conditions. Because this process involves reviewing the decision of a judge or justice of the peace, it must go to a higher court. Bail reviews concern one of two situations: whether or not the judge or justice of the peace made an error of law during the bail hearing, or whether or not there was a material change in circumstances of the accused. Bail reviews are lengthier and more serious than bail variations.