May 12, 2012 – The police are limited in their powers to access an accused person’s password protected computer when the police obtain the password in violation of a suspect’s rights under section 9 and 10(b) of the Charter of Rights and Freedoms. In R. v. Stemberger,  O.J. No. 221, January 23, 2012, the police obtained a warrant to search the residence of Mr. Stemberger. The police suspected that somebody in Mr. Stemberger’s residence, where he lived with his parents and twin brother, had accessed child pornography. Upon initiation of a search warrant, which they were given the power to seize computers they suspected of containing child pornography, the police spent an excessive amount of time detaining Mr. Stemberger and his parents in the Stembergers’ home. During the detention, the police questioned Mr. Stemberger about the password to his computer. Mr. Stemberger gave police the password to his computer and the police then proceeded to search the contents of Mr. Stemberger’s computer hard-drive, discovering 70 child pornography images.
Section 9 of the Charter states that “Everyone has the right not to be arbitrarily detained or imprisoned.” Section 10(b) states that “Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.” The Crown in this case conceded that Mr. Stemberger’s Charter rights had been violated and the statement that he made to police when he gave them his password should be excluded. However the Crown contested that the child pornography images should not be excluded because the police had a warrant to seize computers they suspected of containing child pornography images. The court did not agree with the Crown. The Court stated that the search of Mr. Stemberger’s computer “was conducted in an unreasonable manner and in flagrant disregard of his rights.” The court went on to state that Mr. Stemberger’s right to counsel and his right not to be arbitrarily detained was “wilfully and brazenly violated” by the investigating officer. Mr. Stemberger “was also detained unlawfully beyond the initial period required in order to facilitate that questioning. During that questioning, the police obtained his password. The officers believed that a password protected computer could defeat their ability to search the computer so they violated his rights, obtained his password and found evidence therein which they intend to use to prosecute him.”
This case illustrates the importance of a person’s rights under the Charter, especially in the context of a police investigation involving arbitrary detention and the right to instruct counsel. The Charter protected Mr. Stemberger, who essentially incriminated himself without first obtaining advice from counsel not to do so before he was placed under arrest, but while he was arbitrarily detained by police. The police in this case had an opportunity to seize Mr. Stemberger’s computer and conduct a search at the station. However they chose to violate Mr. Stemberger’s Charter rights in order to obtain the evidence they believed they would find.