Friday, July 12, 2013

Supreme Court of Canada to consider cell phone privacy and police searches incident to arrest

The Supreme Court of Canada yesterday granted leave to appeal in the case of R. v. Fearon. The Court is limiting its review of the Ontario Court of Appeal decision to privacy issues related to police searches of phones incident to arrest. In this case, it was an LG feature phone, not a smartphone but I expect that the Court will establish general principles that will cover all mobile electronics.

I previously blogged about the case here: Password protect your phone if you care about your privacy: What R v Fearon means

Here is also a handy summary from the SCC:

35298 Kevin Fearon v. Her Majesty the Queen (Ont.) (Criminal) (By Leave)

Charter of Rights and Freedoms – Criminal law – Search and seizure – Right to counsel – Right to silence – Evidence – Whether search of cell phone during arrest requires search warrant or is within a police officer’s authority to search incident to arrest – Whether contents of applicant’s cell phone should have been excluded from evidence – Whether statement to police was voluntary – Whether applicant waived his right to counsel.

The applicant was arrested for armed robbery. During a search incident to the arrest, a police officer found the applicant’s cell phone. It was not locked nor password protected. The officer examined the contents of the phone and found photographs of a gun and cash, as well as an incriminating text message. The officer seized the cell phone. The cell phone was searched several more times at the police station that day and the next day but no more evidence was extracted. Months later, a search warrant was obtained to search the phone again. The applicant was advised of his rights upon arrest and, en route to the police station, he stated that he wanted to call a lawyer. At the police station, the arresting officers advised the booking officer that the applicant had asked to talk to a lawyer. The applicant was left in an interview room for five hours without opportunity to contact counsel. When he was interviewed, he was again advised of his right to counsel. He made incriminating statements.

Here's some CBC coverage of the case, as well: Top court to hear case involving cellphones, privacy rights - Politics - CBC News.

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