Canadian Supreme Court Rules In Favor of Warrantless Cellphone Searches

An anonymous reader writes In a surprising decision, a split Supreme Court of Canada ruled this morning that police can search cellphones without a warrant incident to an arrest. The majority established some conditions, but ultimately ruled that it could navigate the privacy balance by establishing some safeguards with the practice. Michael Geist notes that a strongly worded dissent disagreed, emphasizing the privacy implications of access to cellphones and the need for judicial pre-authorization as the best method of addressing the privacy implications. The U.S. Supreme Court's June 2014 decision in Riley addressed similar issues and ruled that a warrant is needed to search a phone.

Comments

Blame Canada!

[BarbaraHudson]

The ruling also said that, even if the evidence was obtained through an improper search of the phone, it's still admissible.

Fearon was convicted of armed robbery in a 2009 Toronto jewelry heist. Despite finding the search of his phone wasn't reasonable and breached his rights, the Supreme Court said the search was done in good faith.

The court kept the evidence found in the phone — a photo of a gun and a draft text message referring to jewelry that said "We did it."

Excluding the evidence, the court found, would undermine the truth-seeking function of the justice system. The minority disagreed and would have excluded the evidence because it was unconstitutionally obtained.

Re:Blame Canada!

[Mashiki]

This really isn't news. In Canada evidence that was obtained through an improper search can be admissible anyway, so this is pretty much going along with rulings since the 1960's, reaffirmed post-1982 ratification. The law itself was updated when C-46 was passed to reorganize and fix the Criminal Code itself bringing it in line with the Charter of Rights and Freedoms. Just remember though, on appeal that same evidence that was allowed can be tossed out. Or in some cases even added in if it wasn't included in the original case. This of course is why S.7 of the charter is worded so strongly, and over the last 15 years the majority of cases have disallowed said evidence improperly obtained to be allowed.

And this is also why the court stated in their ruling that it allows obtaining of such only via cellphones also long as there are proper notes kept. This means, the chain of evidence must be maintained, and why it's one of the key reasons that evidence gained under a improper search is thrown out. For those that don't know, we already allow "improper search" under the law--this is done via the RIDE program.

The dissent

[schneidafunk]

A partial quote that summarizes the point clearly:

"The intensely personal and uniquely pervasive sphere of privacy in our personal computers requires protection that is clear, practical and effective. An overly complicated template, such as the one proposed by the majority, does not ensure sufficient protection. Only judicial pre-authorization can provide the effective and impartial balancing of the state’s law enforcement objectives with the privacy interests in our personal computers. Thus, I conclude that the police must obtain a warrant before they can search an arrested person’s phone or other personal digital communications device. "

Re:Password protect your phone

[DMUTPeregrine]

For rooted phones, the Cryptfs Password app (Or any terminal emulator app) can be used to change the device encryption password without changing the unlock password. The encryption password is only needed on bootup, so be sure you have a way to quickly shut the phone down (lockscreen widget, customized power button long-press, etc).