The Right To Silence Carries The Right To Keep Passwords Secret

The right to silence is a fundamental principle of Canadian criminal law that protects suspects and accused persons from being compelled to incriminate themselves. It also carries the right to keep electronic device passwords secret and, as the Ontario Court of Appeal recently affirmed in R. v. O'Brien, 2023 ONCA 197 ("O'Brien"), it prevents law enforcement from using pressure tactics to mislead suspects into believing that they are obliged to disclose their passwords. The decision is a rebuke of law enforcement's practice of taking advantage of the psychological impact of raids in order to pressure suspects, in the heat of the moment, into "volunteering" their passwords without concern for their informed consent.