Thanks to court ruling police can look through your cell phone, sort of

Steve Mertl
National Affairs Contributor
Daily Brew
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An Ontario court decision this week has serious implications for anyone carrying a mobile phone who has a run-in with police.

It boils down to this: If you don't want the cops to rummage through your phone if they arrest you for something, put a password-protected lock on it.

The Ontario Court of Appeal, in a unanimous ruling handed down Wednesday, found that police can search the contents of an arrestee's phone without a warrant provided they don't need a password to get in.

Such a search, incident to an arrest, does not violate a suspect's Charter right against unreasonable search or seizure, the three-judge panel concluded.

The ruling has puzzled legal observers, who say it goes against previous decisions regarding evidence from electronic devices such as cellphones and computers.

[ Related: OK for police to search cellphone on arrest if no password ]

The case involved armed-robbery suspect Kevin Fearon, who was arrested in 2009 after a Toronto jewelry-store robbery. Police found his phone during a pat-down, according to the Toronto Star. A troll through its contents turned up photos of a gun and cash, as well as am unsent text message referring to the robbery.

Fearon later confessed and was convicted trial, despite is lawyer's attempt to exclude the evidence from the phone, and handed a six-year prison term. His appeal was joined by the Criminal Lawyers Association and the Canadian Civil Liberties Association.

The Appeal Court found that police can perform a "cursory" examination of an arrestee's phone as long as it's not protected by a password, when a warrant would be required.

But the Globe and Mail noted the decision appears to contradict a ruling in the case of child-killer Michael Rafferty, convicted of murdering eight-year-old Tori Stafford. In that case, the trial judge ruled the Crown couldn't present evidence of Rafferty's obsession with child pornography gleaned from his laptop computer because they'd gone through it without a warrant.

A computer, the judge reasoned, was no longer a "thing" that could reveal evidence in a cursory examination but a "place" that could contain personal information, the Globe said. The judge based his decision on an earlier double-murder where a warrant was required to search the suspect's cellphone.

Rafferty's former defence lawyer, Dirk Derstine, doesn't understand the Appeal Court's reasoning. Data contained on phones is not in plain view and other courts have upheld the private nature of the information they contain, he said.

“Your electronic data is essentially your new underwear drawer; it has the most private connotations and before the state goes nosing around in it they need an excellent reason or judicial authorization," Derstine told the Globe.

“That principle has been significantly weakened now. If I leave my door open that doesn’t mean the police can come walking through it, just because it’s easy."

Lawyer Susan Chapman, who argued the Criminal Lawyers Association's position in the appeal, also said the court didn't consider the private nature of cellphones.

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“Text messaging is basically the equivalent of a modern wire tap," she told the Star. "The court really understated the expectation of privacy that Canadians have in their cellphones.

“This is a very insidious practice. There has to be some limits on the ability of police access.”

Fearon's lawyer, Sam Goldstein, said he is considering an appeal to the Supreme Court of Canada, where the Globe said several similar cases are under review. However, the high court is usually unwilling to grant leave to appeal lower-court rulings that have been upheld unanimously.