What's the Canadian equivalent to the 5th amendment?
July 11, 2011 9:16 PM Subscribe
Canada's equivalent of the 5th amendment? I'm looking for recent case law precedents or well publicized examples in the news involving individuals compelled to give up encryption passwords or other potentially self-incriminating information.
Section 11(c) of the Charter states
[Interestingly, these Charter rights do not apply in the case of military boards of inquiry, which formally investigate accidents and misconduct involving military personnel. They can compel someone to testify even if the testimony is self-incriminating (see this discussion of military boards of inquiry and "friendly fire" incidents).]
posted by hurdy gurdy girl at 12:05 AM on July 12, 2011
11. Any person charged with an offence has the right (c) not to be compelled to be a witness in proceedings against that person in respect of the offenceThis is also addressed in Section 13:
13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.The corresponding pages [Section 11(c); Section 13] from the Canadian Charter of Rights Decisions Digest, while not particularly recent, include many references to cases that have dealt with self-incrimination.
[Interestingly, these Charter rights do not apply in the case of military boards of inquiry, which formally investigate accidents and misconduct involving military personnel. They can compel someone to testify even if the testimony is self-incriminating (see this discussion of military boards of inquiry and "friendly fire" incidents).]
posted by hurdy gurdy girl at 12:05 AM on July 12, 2011
Best answer: IANAL either.
Other key Charter sections would include Section 8 - Everyone has the right to be secure against unreasonable search or seizure and 24 (2) which covers the exclusion of evidence bringing administration of justice into disrepute. Charter cases are always a balancing act as the rights and freedoms are "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." (Section 1)
That said, Canada implements key disclosure by broad interpretation of "existing interception, search and seizure and assistance procedures".
From the Criminal Code: Assistance order - 487.02 Where an authorization is given under section 184.2, 184.3, 186 or 188, a warrant is issued under this Act or an order is made under subsection 492.2(2), the judge or justice who gives the authorization, issues the warrant or makes the order may order any person to provide assistance, where the person’s assistance may reasonably be considered to be required to give effect to the authorization, warrant or order.
As discussed here, it is clear that such an order can compel someone who is not the suspect/defendant to provide a password or key but there is no case law that addresses a situation in which a suspect/defendant is asked to provide assistance.
R. v. Beauchamp is interesting. Police seized computers containing encrypted data in a case of credit card forgery involving multiple defendants. Defendants asked for a copy of the encrypted data under disclosure rules. Crown argues that because the data is encrypted they don't possess or control it and therefor can't use their discretion in disclosing it. Court decides that the defendants "may, at their option, obtain disclosure of the contents if they provide the password or key to the Crown and the Crown would then review the material, exercise its discretion..." but does not order them to do so because, "the defence has no obligation to assist the Crown prosecution and is entitled to be adversarial."
A Cryptography Policy Framework for Electronic Commerce: Building Canada's Information Economy and Society (1998) discusses some of these issues. See the sections on Lawful State Access Considerations and Human Rights and Civil Liberties Considerations.
posted by shoesfullofdust at 1:46 AM on July 12, 2011
Other key Charter sections would include Section 8 - Everyone has the right to be secure against unreasonable search or seizure and 24 (2) which covers the exclusion of evidence bringing administration of justice into disrepute. Charter cases are always a balancing act as the rights and freedoms are "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." (Section 1)
That said, Canada implements key disclosure by broad interpretation of "existing interception, search and seizure and assistance procedures".
From the Criminal Code: Assistance order - 487.02 Where an authorization is given under section 184.2, 184.3, 186 or 188, a warrant is issued under this Act or an order is made under subsection 492.2(2), the judge or justice who gives the authorization, issues the warrant or makes the order may order any person to provide assistance, where the person’s assistance may reasonably be considered to be required to give effect to the authorization, warrant or order.
As discussed here, it is clear that such an order can compel someone who is not the suspect/defendant to provide a password or key but there is no case law that addresses a situation in which a suspect/defendant is asked to provide assistance.
R. v. Beauchamp is interesting. Police seized computers containing encrypted data in a case of credit card forgery involving multiple defendants. Defendants asked for a copy of the encrypted data under disclosure rules. Crown argues that because the data is encrypted they don't possess or control it and therefor can't use their discretion in disclosing it. Court decides that the defendants "may, at their option, obtain disclosure of the contents if they provide the password or key to the Crown and the Crown would then review the material, exercise its discretion..." but does not order them to do so because, "the defence has no obligation to assist the Crown prosecution and is entitled to be adversarial."
A Cryptography Policy Framework for Electronic Commerce: Building Canada's Information Economy and Society (1998) discusses some of these issues. See the sections on Lawful State Access Considerations and Human Rights and Civil Liberties Considerations.
posted by shoesfullofdust at 1:46 AM on July 12, 2011
The Canadian Internet & Public Policy Clinic has a good backgrounder for non-lawyers on many of these issues. Here is the link to their overview of the lawful access laws.
posted by modernnomad at 5:47 AM on July 12, 2011
posted by modernnomad at 5:47 AM on July 12, 2011
Here is (allegedly) Lawrence Gridin talking about border searches and giving up passwords.
posted by Lemurrhea at 6:03 AM on July 12, 2011
posted by Lemurrhea at 6:03 AM on July 12, 2011
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Section 7 of the Charter of Rights and Freedoms says: 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.
I couldn't give you any case law cites or anything like that, but the Wikipedia pages relating to the Charter appear to refer to a lot of case law, so you might check those out.
posted by tivalasvegas at 9:38 PM on July 11, 2011