God Help Us

In the wake of 911, it's increasingly clear that the Charter of Rights and Freedoms is seminal to Canadian democracy. The latest example of the Charter's importance is illustrated by a request from the Canadian Association of Chiefs of Police. Nadar R.Hassan and Stephen Aylward write:

Last week, the Canadian Association of Chiefs of Police adopted a startling resolution calling for legislation that, on judicial authorization, would “compel the holder of an encryption key or password to reveal it to law enforcement.” Public Safety Minister Ralph Goodale invited public debate on the proposal.

Police are responding to new challenges wrought by modern technology. Encryption renders data unintelligible without the user’s password. Even with a warrant to seize and search a cellphone or computer, police cannot gain access to the valuable information stored on those devices unless they can guess the password (or hack into the device, as the FBI recently did with a locked iPhone in the San Bernardino case).

Police worry criminals are “going dark”— i.e., using encryption to evade detection and prosecution. Compelling suspects to surrender their cellphone and computer passwords is an enticing solution to this problem. But it is one that ought to be unacceptable in a free and democratic society.

What is at stake is a basic principle of British Common Law:

The police chiefs’ proposal would lead to a radical erosion of our constitutional rights protected under the Canadian Charter of Rights and Freedoms. When the state accuses us of a crime, we are entitled to say, “prove it.” The Supreme Court of Canada has said this right — the right against self-incrimination — is the organizing principle of our criminal justice system. An accused person is under no obligation to assist the state in her or his own prosecution, whether by answering questions about where she was the previous night or by revealing passcodes.

Canadian law jealously protects the right against self-incrimination for reasons that are both historical and principled. The right against self-incrimination has its roots in the revulsion towards the 17th century courts of the Star Chamber, which would detain supposed enemies of the state on mere suspicion, compel them to swear an oath, and then require them on pain of punishment to answer questions.

Our constitutional law protects the right against self-incrimination because we recognize there is a power imbalance in criminal prosecutions, which frequently pit a single (often marginalized) individual against the overwhelming power of the state. The right against self-incrimination is the great equalizer. It ensures an individual is put through the criminal process only once police have built a case. It also protects the dignity of the accused and limits the risk that state officials will abuse their power.

Since the 1970's, economic power has been concentrated in fewer and fewer hands. Since 911, there has been a push to concentrate judicial power in fewer and fewer hands. We've seen the effects of the so called economic revolution. God help us if a similar judicial revolution takes hold.

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