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!

[Anonymous Coward]

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.

This ruling is a cowardly conceit to the End justifying the Means. It does so by completely ignoring that those means will be used for all manner of ends and not just when clearly right. I can go wander into a crowd and shoot a machine gun. If I happen to kill all drug dealing murderers, does that make it right? Of course not. This is basically the same thing. Shoot someone, see if they were wanted and then justify the blind shot since he was wanted. If he wasn't wanted? Don't mention it, lather rinse and repeat.

Evidence should be excluded, even if a bad guy gets away, because the cops need to follow the f-ing rules.

Basically, a bad guy got caught red handed because the cops broke the rules. Shows like 24, much less the real cops and prosecutors will never bring to trial the obviously innocent guy they arrested for clearly false reasons and expose themselves under that circumstance. They'll drop charges, offer a plea to time served and all sorts of other cons to make themselves look good.

24 never had Keifer Sutherland beats a guy we, the audience, knew was innocent. Never showed an innocent man, at age 25 in 2014, being beaten until he confessed to killing JFKennedy, sinking the Titanic and whatever story of the week needed a confession. They don't show that shit. The closest I've ever seen was "The Shield" (great show btw) where they did torture an "innocent" guy, but the guy was only innocent of the specific crime he was being tortured for - he was a murderous drug kingpin thug and not sympathetic on any other level.

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.

Re:Blame Canada!

[TheGratefulNet]

except: in modern times, the bad and good guys have sort of switched roles!

I consider most authority figures to be bad-guys or soon-to-be bad guys. power corrupts. period! so much power today for authoritarians, its guaranteed they will turn bad. no doubt at all in my mind. and look what we have, today, in our 'law enforcement' word! just read the news for a few weeks and you'll get a sample of the topsy-turvey world we now live in.

"dont talk to cops" is a modern thing. it never used to be that way when I was growing up, but it sure as hell is a 'thing' now!

that's just one example of the 'new normal' we find ourselves in.

I really don't worry about terrorists or other boogeymen. but I do worry about thugs with deadly force and some random thing that would cause them to put MY LIFE at risk for some utter bullshit reason or power-trip.

I don't need protection from the so-called bad guys. I would, however, like protection against the so-called good guys. and that's what our body of laws USED TO BE ABOUT.

checks and balances are non-existant, now-adays.

(unless you're rich and powerful, of course).

Re:Blame Canada!

[BarbaraHudson]

Actually, there have been previous judgments that have also allowed evidence improperly obtained to be admitted, based on the court's interpretation of the Canadian Constitution provision of "bring the administration of justice into disrepute. This is section 24:

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

You can see a list of admitted and excluded evidence cases decided by the Supreme Court of Canada under section 24(2) on pages 25-26 of this pdf. In some cases, NOT admitting the evidence would bring the administration of justice into disrepute. Like most things Canadian, it's a compromise.

Re:Blame Canada!

[stephanruby]

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."

The guy should have just used SnapChat.

That's what robbers, who seek external validation from their friends, do nowadays after they rob jewelry stores or liquor stores.

I just can't believe SnapChat wasn't around in 2009.

Re:Blame Canada!

[Maow]

This ruling is a cowardly conceit to the End justifying the Means.

Not really. Canada is not as absolutist as the USA.

For example, from Wikipedia on The Canadian Charter of Rights and Freedoms:

At common law, all evidence, regardless of how it was obtained, can be submitted in a trial.[9] The US exclusionary rule excludes all evidence acquired through the violation of the Bill of Rights. Canada has taken a middle ground, sometimes allowing for the exclusion of evidence, whenever its use threatens to bring the "administration of justice" into "disrepute."[1]

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:Buggers

[jwhyche]

Another reason that you need to encrypt your device with strong encryption. This would at least make the police have to get a warrant before they can search your shit. Not actually a warrant for searching the phone but a court order, for you to refuse, to barf up the password.

the tl;dr version

[TheGratefulNet]

"look, we have the might to do what we want, and we WANT to invade your privacy. for power-mongers like us, this is what we live for and thrive on. its why we, as bullies-with-badges, got into this field! don't take our fun away. plus, well, THINKOFTHECHILDREN and BEAFRAIDOFTERRORISTS."

that's it, in a nutshell. the elephant in the room that no one wants to bring up.

"Balance"

[flacco]

I have come to understand that when courts refer to the "balance" between privacy and law enforcement or security, your privacy is about to get fucked in the ass.
 

We Are Not Alone

[dcw3]

Glad to see our northern neighbors have joined us in our efforts to keep the ends justifying the means. /sarcasm

Re:So let's carry burner phones ...

[geekmux]

... while we are out and about and leave our smart phones at home?

This is bat-shit crazy.

30 years ago if you told someone that companies would work to place a GPS tracking unit on every single member of society, tracking every movement they make, along with every click, every URL, every music play, every phone call, every contact, in order to be sold over and over again...

...and that same society would welcome it with open arms...

...I'd probably be using the words "bat-shit crazy" too.

And yet, here we are, hundreds of millions of bat-shit crazy people walking around with these "smart" phones..

Re:Simple: enable your password

[TheGratefulNet]

there's no brute-force needed.

the carriers and phone makers are all REQUIRED by calea (in the US) to have backdoors on anything that has a 'network' aspect to it.

plain and simple. they have magic usb cables that get into your phone. if you bought your phone (and not built it) then they have backdoors into it. this is pretty well known by geeks, is it not?

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).