R. v. Shergill, 2019 ONCJ 54

ONTARIO COURT OF JUSTICE CITATION: R. v. Shergill , 2019 ONCJ 54 DATE: 2019 01 24 BETWEEN: HER MAJESTY THE QUEEN — AND — SUHAIL SHERGILL Before Justice P. Downes Heard on December 4, 2018 Reasons for Judgment released on January 24, 2019 Ms. Mabel Lai and Ms. Rebecca De Filippis.................................. counsel for the Crown Mr. David M. Humphrey and Ms. Jill D. Makepeace......................................................... counsel for Suhail Shergill P. DOWNES J.: I.

INTRODUCTION [ 1 ] Suhail Shergill is charged with a variety of sexual and child pornography offences in relation to his alleged interaction with a 15-year-old girl. Police seized his smart phone, a Blackberry Priv, incident to arrest. They then obtained a search warrant under s. 487 of the Criminal Code to search the contents of the device, but were unable to execute that warrant because the device is password- protected. The uncontradicted evidence on this application is that police currently know of no technology which would allow them to access the contents without risking their destruction.

As a result, the police now seek a further s. 487 warrant, but this time also apply for an assistance order under s. 487.02 of the Criminal Code which, if granted, would compel Mr.

Shergill to unlock the device so that the police can search it. [ 2 ] Although it is relatively uncommon to receive submissions from Crown counsel in support of an application for a search warrant, and even more unusual to receive them from counsel for the target of the search, it was appropriate and helpful in this case in light of the unusual and legally complex nature of this application. [1] [ 3 ] The Crown says that basic principles of statutory

interpretation allow for an accused to be the subject of an assistance order in relation to his or her own investigation. The Crown further submits that this request for an assistance order does not raise Charter concerns, but is instead a matter of mere practicality. The Crown’s factum focusses entirely on the principle against self-incrimination, submitting that the proposed assistance order does not engage that principle because it only compels Mr.

Shergill to provide access to, and not create, material the police are judicially authorized to examine, and because any self-incrimination concerns are met by the grant of use immunity over Mr. Shergill’s knowledge of the password. [ 4 ] Mr. Shergill says that the order is constitutionally prohibited because it would compel him to communicate to the police information currently existing only in his mind for the purpose of assisting them in obtaining potentially incriminating evidence against him.

That compulsion, he argues, is a breach of his s. 7 liberty interests and is not in accordance with the principles of fundamental justice. Compelling him to participate in his own investigation by revealing information known only to him violates his right to silence and the protection against self-incrimination, both of which are principles of fundamental justice. In short, Mr. Shergill says that a court order requiring him to communicate his thoughts for the sole purpose of providing access to evidence which may be used to send him to

jail would be an unprecedented and unconstitutional use of the assistance order power. [ 5 ] I agree with Mr. Shergill. For the reasons that follow, I decline to issue the assistance order. To do so would, in my view, amount to a breach of Mr. Shergill’s s. 7 right to liberty in a manner that is not in accordance with the fundamental principles of justice, in particular his right to pre-trial silence. While the application for a s. 487 warrant in relation to the phone is granted, the application for an assistance order is dismissed. II.

THE 487 APPLICATION [ 6 ] An assistance order may only be issued in support of an underlying judicial authorization. In this case, the police seek a s. 487 warrant to search the contents of Mr. Shergill’s Blackberry. I accept that D.C. Firth’s affidavit satisfies the statutory grounds in s. 487 . The application for the warrant is granted on the terms appended to the order. III.

THE ASSISTANCE ORDER [ 7 ] S. 487.02 of the Criminal Code reads, in part, as follows: If…a warrant is issued under this Act, the judge who…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. [ 8 ] There is a preliminary issue as to whether an accused person can be the subject of an assistance order in relation to the investigation of his or her own case. The parties did not dwell on this issue, and I accept that as a matter of statutory

interpretation, there is nothing in the “grammatical and ordinary sense” or the statutory context of s. 487.02 which precludes its application to an accused in respect of his or her own case. [2] Other search and seizure authorizations found in

Part XV of the Criminal Code are explicit about the reach of the proposed order [3] or the provision of use immunity. [4] This suggests that the failure to exclude a target from the assistance order provisions, particularly where there is obviously no such limit with respect to the underlying s. 487 authorization, was a deliberate choice by Parliament and not something which can be judicially “read in.” [5] [ 9 ] I am similarly satisfied that Mr. Shergill’s assistance is reasonably required in order to give effect to the underlying authorization.

The evidence before me on this application is that the data on the device cannot be accessed without the provision, directly or indirectly, of the password. It is reasonable to infer that Mr. Shergill has knowledge of the password. His assistance is required for the police to successfully execute the s. 487 warrant. IV. THE CONSTITUTIONALITY OF THE PROPOSED ORDER 1.

Introduction [ 10 ] Even where the statutory preconditions for the issuance of a warrant or authorization have been met, there remains in all such applications a residual judicial discretion to deny them. [6] One basis upon which to exercise the discretion not to issue the order is if doing so would breach the subject’s Charter rights. I have considered whether Charter concerns pertinent to the gathering of evidence should be reserved to the trial judge when the admissibility of any such evidence could be challenged by Mr. Shergill.

I am satisfied, however, that if a Charter breach would crystalize in the act of issuing the order, then I must exercise my discretion not to issue it. [7] [ 11 ] The parties agree that the pertinent guarantees raised by this application are found in

section 7 Charter .

Section 7 (

a) The s. 7 Guarantee [ 12 ]

Section 7 of the Charter provides that: 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. [ 13 ] A state act is inconsistent with s. 7 if it limits the right to life, liberty or security of the person, in a manner that is not in accordance with the principles of fundamental justice. [8] [ 14 ] In R. v. White , [9] the Supreme Court of Canada outlined a three-stage approach to the assessment of whether there has been a violation of s. 7.

The first stage asks if there is a real or imminent deprivation of life, liberty or security of the person, or a combination of these interests. If so, the second stage asks what principles of fundamental justice are at stake? And third, is the deprivation in accordance with the relevant principle or principles of fundamental justice? [10] (

b) Deprivation [ 15 ] The Crown concedes the first part of the test: the issuance of a court order requiring Mr. Shergill to reveal information to the authorities or risk being charged with a criminal offence, is clearly a limit on his liberty interests. I agree with that concession. [11] (

c) The Principles of Fundamental Justice

[ 16 ] The parties also agree that the relevant principles of fundamental justice are the protection against self-incrimination and the related right to silence, which has been described as a “central manifestation of the broad principle against self-incrimination.” [12] Again, I agree with that position. I also agree with the Crown that s. 11(

c) and s. 13 of the Charter , which focus exclusively on testimonial compulsion, are not engaged on the facts of this application. [ 17 ] The central issue on which the parties differ is whether the deprivation of Mr. Shergill’s liberty brought about by the proposed order is in accordance with these principles of fundamental justice. (

d) The Protection Against Self-Incrimination [ 18 ] The Crown suggests that Mr. Shergill’s s. 7 interests are “not engaged” or minimally compromised because what is sought to be compelled from him has no incriminatory value or effect. All the assistance order seeks is a password, the content of which is of no evidentiary value. Indeed, the Crown says that the police need not even be aware of the actual password as long as Mr.

Shergill somehow unlocks the phone without actually touching it himself. [ 19 ] In my view, however, the protection against self-incrimination can retain its force even where the content of the compelled communication is of no intrinsic evidentiary value. This is particularly so where, as here, that communication is essential to the state’s ability to access the evidence which they are “really after.” [13] To paraphrase the Court in Reeves , [14] to focus exclusively on the incriminatory potential of the password neglects the significant incriminatory effect that revealing the password has on Mr. Shergill.

As the Supreme Court held in White : The protection afforded by the principle against self-incrimination does not vary based upon the relative importance of the self- incriminatory information sought to be used. If s. 7 is engaged by the circumstances surrounding the admission into evidence of a compelled statement, the concern with self-incrimination applies in relation to all of the information transmitted in the compelled statement.

Section 7 is violated and that is the end of the analysis, subject to issues relating to s. 24(1) of the Charter . [15] [ 20 ] In R. v. D’Amour , Doherty J.A., writing for the Court, articulated the simple rationale underlying the principle against self- incrimination, which he described as follows: Where the state alleges wrongdoing, it cannot force the target of that allegation to assist the state in proving the allegation. This rationale reflects the high premium placed on personal autonomy and individual privacy by the principles of fundamental justice.

Those principles start from the premise that individuals are entitled to choose whether to co-operate with the state and, if they choose not to, to be left alone by the state. The rationale underlying the principle also reflects the hard learned lessons of history. Conscripted evidence is notoriously unreliable and the line between state compulsion and state abuse can be a fine one. [16] (

e) The Right to Silence [ 21 ] In my view, the more significant principle of fundamental justice at stake is the right to silence. This right emerged as a component of the protection against self-incrimination in R. v.

Hebert in which McLachlin J. (as she then was), held: If the Charter guarantees against self-incrimination at trial are to be given their full effect, an effective right of choice as to whether to make a statement must exist at the pre-trial stage… the right to silence of a detained person under s. 7 of the Charter must be broad enough to accord to the detained person a free choice on the matter of whether to speak to the authorities or to remain silent. [17] McLachlin J. also reaffirmed the Court’s prior holding that the right to silence was “a well-settled principle that has for generations been part of the basic tenets of our law.” [18] [ 22 ] The “common theme” underlying the right to silence is “the idea that a person in the power of the state in the course of the criminal process has the right to choose whether to speak to the police or remain silent.” [19] In tracing the history of the right, McLachlin J. referred to an “array of distinguished Canadian jurists who recognized the importance of the suspect’s freedom to choose whether to give a statement to the police or not” [20] and described the essence of the right to silence as the “notion that the person whose freedom is placed in question by the judicial process must be given the choice of whether to speak to the authorities or not.” [21] Finally, Hebert held that s. 7 provides “a positive right to make a free choice as to whether to remain silent or speak to the authorities.” [22] [ 23 ] The pre-trial right to silence is a concept which, as Iacobucci held in R.J.S. , has been “elevated to the status of a constitutional right.” [23] (

f) Limitations on Charter Protections [ 24 ] An absolute rule prohibiting any sort of compelled cooperation by the target of a police investigation is obviously not what the Charter requires. Otherwise, there could be no DNA warrants, breathalyzer schemes or fingerprinting requirements. At the same time, not every self-incriminatory compulsion will be susceptible to Charter accommodation. In other words, some infringements of s. 7 simply will not accord with principles of fundamental justice even if they are accompanied by prophylactic measures such as the right to counsel or use immunity.

As Iacobucci J. put it in R.J.S. : The Charter’s structure…is founded upon the Crown’s obligation to make a case, but it also assumes a general rule of compellability coupled with evidentiary immunity.

If, however, the Charter places no limits on when this structure may be invoked, then the Charter could, in fact, condone an inquisition of the most notorious kind. [24] [ 25 ] As the White court held in relation to self-incrimination, it is a concept which “demands different things at different times, with the task in every case being to determine exactly what the principle demands, if anything, within the particular context at issue.” [25] Both Hebert and R.J.S. serve as examples of how the application of certain criteria or protections can render potential infringements of the right to silence and the protection against self-incrimination tolerable in the context of s. 7. [26]

[ 26 ] In Hebert , the Court held that the protection afforded by the right to silence had no application to police questioning of an accused after counsel has been retained, when the target was not detained, or to statements made voluntarily to cellmates. It applied only to self-incriminating statements “actively elicited” by a state agent.

In R.J.S. , the Court held that a subpoena issued to an accused to testify at the trial of his separately charged co-accused engaged the witness’ s. 7 interests, but was consistent with principles of fundamental justice because of use and limited derivative use immunity in respect of his evidence, a model which the Crown says makes the proposed order in this case constitutionally sound. The question that arises in this context is whether the extent of immunity offered by the Crown is sufficient to satisfy the s. 7 protection at stake. (

g) Immunity [ 27 ] The Crown suggests that it is a sufficient counterweight to the infringement of Mr. Shergill’s right to silence to provide him with use immunity in respect of the content and his knowledge of the password. For the defence, nothing short of full derivative use immunity in relation to any evidence obtained or accessed by the police as a result of Mr. Shergill’s compelled assistance would suffice. [ 28 ] Not all derivative evidence must be immunized from use in order to make the compulsion Charter compliant.

In R.J.S. the balance was resolved with reference to “the character of proceedings at which testimony is sought to be compelled.” [27] Put another way, the inquiry is with respect to “the purpose for which testimony is desired by the state….An essential objection must be lodged against a proceeding which is justified by a self-incriminatory purpose.” [28] [ 29 ] Although R.J.S. did not resolve this particular issue, it seems clear that if the predominant purpose of the state action is to incriminate the person who is being compelled to speak, then the violation will at least be harder to justify through the guarantee of some form of immunity. [ 30 ] The Crown says that the evidence contained on Mr.

Shergill’s Blackberry is not deserving of use immunity protection because it is not evidence created by Mr. Shergill. Rather, like the impugned evidence in D’Amour , it already exists and does not come into existence by virtue of the assistance order. As Doherty J.A. held in D’Amour : Documents that exist prior to, and independent of, any state compulsion do not, however, constitute evidence ‘created’ by the person required to produce those documents.

With certain narrow exceptions, neither the compelled production of such documents, nor the subsequent use in a criminal proceeding of such documents, attracts the protection of the principle against self-incrimination. [29] [ 31 ] I do not accept the Crown’s characterization of the evidence. As a practical matter, without the assistance order, the evidence would never come into the hands of the police.

In that sense it strikes me as somewhat artificial to say that the data on the Blackberry is evidence which, in the language of D’Amour , “exist[s] prior to, and independent of, any state compulsion.” Rather, it is evidence which, as far as the police are concerned, is only “brought into existence by the exercise of compulsion by the state.” [30] Doherty J.A. held that the s. 7 claim in D’Amour failed “because the rationale underlying the principle against self-incrimination does not reach the production or subsequent use by the state of the appellant's T4 slips.” That rationale, as already explained, is the prohibition on the state forcing the target of a criminal allegation to assist it in proving the allegation.

Looked at in any realistic and pragmatic sense that, in my view, is precisely what the assistance order in this case would have Mr.

Shergill do. [ 32 ] In R.J.S. , Iacobucci J. held that “evidence is ‘derivative’ if it results, in fact, from a compelled disclosure.” The test was one of causality such that “only evidence which comes to light as a result of a compelled disclosure” can be considered “derivative.” [31] In the following paragraph, Iacobucci J. said that “As a point of terminology, though, I wish to emphasize that all evidence arising from a compelled disclosure is ‘derivative evidence’” [emphasis added]. [32] Iacobucci J. also referred to the definition of derivative evidence in Thomson Newspapers , where La Forest J. held: Evidence derived from compelled testimony is, by definition, evidence that existed independently of the compelled testimony.

This follows logically from the fact that it was evidence which was found, identified or understood as a result of the clues provided by the compelled testimony. Although such evidence may have gone undetected or unappreciated in the absence of the compelled clues, going undetected or unappreciated is not the same thing as nonexistence.

The mere fact that the derivative evidence existed independently of the compelled testimony means that it could have been found by some other means, however low the probability of such discovery may have been. [33] [ 33 ] Iacobucci J. sums up the issue by describing derivative evidence as that “which has independent existence.” [34] [ 34 ] The

definitions, it seems to me, do not readily solve the question of whether the data said to be on the Blackberry “could have been found” without the self-incriminatory assistance of Mr. Shergill.

As Iacobucci J. noted in R.J.S. , “independent existence may be difficult to define.” [35] But as he explained in attempting to resolve the question: Although evidence which does not result from a verbal utterance will generally have a physical character to it (e.g., blood, a visually observed identity or phenomenon, a weapon, or drugs), such evidence may not exist as evidence per se without the intermediate participation of the accused.

In such cases, I believe that a determinative consideration has been whether the evidence could have been obtained by the state but for the accused’s participation following a Charter breach. [36] [ 35 ] In short, I adopt the language of Iacobucci J. in R.J.S. where he concludes: I think that derivative evidence which could not have been obtained, or the significance of which could not have been appreciated, but for the testimony of a witness, ought generally to be excluded under s. 7 of the Charter in the interests of trial fairness.

Such evidence, although not created by the accused and thus not self-incriminatory by definition, is self-incriminatory nonetheless because the evidence could not otherwise have become part of the Crown's case. To this extent, the witness must be protected against assisting the Crown in creating a case to meet. [ 36 ] It may be that at some point in time, technological advancements will mean that the evidence could be obtained without Mr. Shergill’s assistance. But as Iacobucci J. said in R.J.S. :

I have expressed the test for exclusion as involving the question whether evidence could have been obtained but for a witness's testimony. I wish to emphasize that in using the word “could” in this context, I am proposing an inquiry into logical probabilities, not mere possibilities. [ 37 ] At some level, all evidence which has independent existence could have been located by authorities. The important consideration, however, is whether the evidence, practically speaking, could have been located. That is, would the evidence, given the state of affairs in existence, have otherwise come to light?

As Iacobucci J. put it in R.J.S. , “Logic must be applied to the facts of each case, not to the mere fact of independent existence.” [37] [ 38 ] In my view the data on the Blackberry, which the police are only able to access and obtain if Mr. Shergill provides his password, is derivative evidence and must be protected by derivative use immunity in order for the proposed assistance order not to fall foul of

section 7 of the Charter . [ 39 ] The force of the Supreme Court of Canada’s holdings in relation to the primacy of the pre-trial right to silence have persuaded me that the violation of Mr. Shergill’s liberty interests is simply not consistent with that central principle of fundamental justice. I am not satisfied that the immunity guarantees proposed by the Crown can compensate for this breach. Fundamentally, realistically and in any practical sense, granting this application would amount to a court order that Mr.

Shergill provide information which is potentially crucial to the success of any prosecution against him, and which could not be obtained without the compelled disclosure of what currently exists only in his mind.

It strikes at the heart of what the Supreme Court has held to be a foundational tenet of Canadian criminal law, namely, that an accused person cannot be compelled to speak to the police and thereby assist them in gathering evidence against him or herself. [ 40 ] In my view nothing short of full derivative use immunity could mitigate the s.7 violation in this case. [38] [ 41 ] Before leaving this issue I should address the question of other provisions in the Criminal Code which require a suspect or an accused to participate in providing or creating evidence, most particularly the DNA, fingerprinting, breathalyzer and other such schemes.

The distinguishing feature in this case is the testimonial nature of the compulsion contemplated by the assistance order. Mr. Shergill will be required in effect to “speak his mind” to the police. His assistance can only come about through an utterance conveying a thought in his head. To my knowledge, there are no other provisions related to criminal prosecutions in Canada which require an accused to provide utterances fundamentally designed to assist in the obtaining of evidence against him or her. [ 42 ] In the same vein, I reject the implication that what is sought from Mr. Shergill is

an act rather than a form of speech. What the police really want is for Mr. Shergill to reveal the password currently buried only in his mind. That is something which, in the language of one U.S. commentator, “[does] not exist outside a person’s mind, so producing [it] would require compelling the creation of a physical version, and it is this compelled creation that makes the response testimonial.” [39] To construe the unlocking of the device as anything other than a manifestation of compelled speech is not, in my view, a realistic way of looking at what would be required of him. (

h) Balancing [ 43 ] Ultimately, whether the principles of fundamental justice allow for the order sought is, the Supreme Court has said, a question of balancing the rights of the individual with the interests of society as a whole. [ 44 ] In White , the court held that, “In some contexts, the factors that favour the importance of the search for truth will outweigh the factors that favour protecting the individual against undue compulsion by the state.” [40] In R.J.S. , Iacobucci endorsed this comment of La Forest J. in Thomson Newspapers : A right to prevent the subsequent use of compelled self-incriminating testimony protects the individual from being “conscripted against himself” without simultaneously denying an investigator’s access to relevant information.

It strikes a just and proper balance between the interests of the individual and the state. [41] [ 45 ] This is precisely the balance the Crown says must be weighed and assessed in this case – Mr.

Shergill’s protection from being compelled to participate in the police investigation against him weighed against the state’s need and the public’s interest in gaining access to relevant information. [ 46 ] The force of these competing principles can be assessed only in the context of a particular fact situation: [42] is there is room in a case like this for a balancing exercise such that the protection against self-incrimination and the right to silence should give way to the countervailing societal interests “that are of sufficient importance that they may appropriately be characterized as principles of fundamental justice in Canadian society”? [43] The Crown says that the denial of the state’s opportunity to even access evidence it otherwise has lawful permission to examine justifies the minimal infringement of Mr.

Shergill’s right to pre-trial silence that the assistance order would represent. As the Crown put it in its factum, “ The balancing of interests under s. 7 should not permit password protection to act as a trump card against evidence gathering in the name of self-incrimination.” [ 47 ] It was this kind of context which caused the Supreme Court of Canada to modify the long-standing doctrine of search incident to arrest in the face of the unique search and seizure dynamics involved in the acquisition of evidence from cell phones in R. v.

Fearon . [44] Clearly, developments in societal norms and practices may give rise to a recalibration of Charter interests in appropriate cases. [ 48 ] It is stating the obvious to say that effective law enforcement in relation to smart phones generally, and password-protected smart phones in particular, presents unique challenges to the police and to the law of privacy as it has developed under the Charter in the last ten years.

As the Court held in Fearon , “It is well settled that the search of cell phones, like the search of computers, implicates important privacy interests which are different in both nature and extent from the search of other ‘places.’” [45] [ 49 ] The Court’s response has generally speaking been to apply settled Charter and statutory

interpretation principles modified to account for the particular circumstances inherent in these kind of devices. As I read the authorities, the court has resisted taking a categorical approach to either investigative necessity or privacy interests, choosing instead to balance these interests much as the court

has balanced competing Charter interests since Dagenais.[46] [50] The Crown says that much as the common law doctrine of search incident to arrest had to be modified in Fearon in order toprotect the privacy interests of the smart phone owner when weighed against the investigative benefits to the police, a similarrecalibration is required in the context of assistance orders in order to avoid an imbalance between the rights of the individual and theinterests of the state.

Without the minimal assistance of the accused, the state will be entirely frustrated in its desire to gather potentiallycritical evidence.[47] The equation, the Crown says, is out of balance. [51] I accept that the current digital landscape as it relates to effective law enforcement and the protection of privacy presents manychallenges. It may be that a different approach to this issue is warranted, whether through legislative initiatives or modifications to what Isee as jurisprudence which is binding on me.

But on my best application of controlling authority, I am simply not persuaded that theorder sought can issue without fundamentally breaching Mr. Shergill’s s. 7 liberty interests, a breach which would not be in accordancewith the principle of fundamental justice which says that he has the right to remain silent in the investigative context. V. CONCLUSION [52] The application for a s. 487 warrant is granted. The order is available to be picked up at judicial reception.

The application foran assistance order is dismissed. [53] I thank counsel for the high quality of their submissions, both written and oral, on this novel and challenging issue. Released: January 24, 2019 Justice P. Downes [5] R. v. Talbot, [2017] O.J. No. 6280 (C.J.), at para. 15. [10] White, at para. 38; R. v. D’Amour, (ON CA), [2002] O.J. No. 3103 (C.A.), at para. 29. [11] R.J.S., at para. 30; R. v.

Fitzpatrick, (SCC), [1995] 4 S.C.R. 154 at para. 20; White, at para. 39; D’Amour, at para.30. [12] Lisa Dufraimont, “The Patchwork Principle against Self-Incrimination under the Charter,” (2012), 57 S.C.L.R. (2d) 241 – 262, atpara 7; White, at para. 40; R. v. P.(M.B.) (SCC), [1994], 1 S.C.R. 555, at para. 37; R.J.S. at para. 94; R. v. Hebert, (SCC), [1990] 2 S.C.R. 151, at paras. 17-19. [38] R.J.S., at paras. 138-39.