Ontario cellphone court decision could have impacts in B.C.

A recent Ontario Court of Appeal ruling on police examining the contents of a cellphone upon arrest could have impacts in B.C.

A recent Ontario Court of Appeal ruling on police examining the contents of a cellphone upon arrest could have impacts in B.C. in the future, say local lawyers and police.

Ontario’s highest court ruled that if a cellphone is not password protected, police making an arrest can open the phone and examine its contents without first obtaining a search warrant.

When Kevin Fearon was arrested on suspicion of taking part in a robbery in the Toronto area in 2009, police did a pat down search, found the cellphone and examined the contents, finding photos of a gun and cash and an incriminating text message.

At trial, he was convicted of robbery and sentenced to six years jail. Fearon’s appeal argued that the court should carve out a cellphone exception to police power to search upon arrest.

The Ontario Court of Appeal decision found that upon arrest, police can conduct a cursory search of the phone to see if it contained evidence relevant to the alleged crime and that “because the phone was not password protected, the photos and the text message were readily available to other users.”

Const. Gary O’Brien, Nanaimo RCMP spokesman, said in B.C., a police officer can search a cellphone seized upon arrest for evidence related to the offence being investigated, regardless of whether it is password protected.

He said if this decision is appealed and upheld in Canada’s highest court, it would apply here.

“It would slow things down of course,” said O’Brien. “We are reactive to the courts.”

In some cases, such as a suspected drug dealer, police will continue to collect evidence from a cellphone after a person has been arrested because the device will continue ringing with people placing orders for drugs, he said.

Defence lawyer Stephen Taylor said the ruling won’t have a big impact because police can obtain a warrant in a short period of time.

“If they’ve had enough evidence to arrest them and seize the phone, I would think by that point, they would have sufficient grounds to get a search warrant,” he said. “It adds another layer of complexity for the police, I suppose.”

Taylor said with the amount of personal data that can be found on a phone, the expectation of privacy has gone up considerably.

Micheal Vonn, policy director for the B.C. Civil Liberties Association, said while the Ontario high court decision does not bind a lower court in B.C., it would be possible for a B.C. lawyer to cite the Ontario case when arguing whether to exclude evidence obtained from a cellphone. But there are other cases that go in different directions.

“This is just an area of law at this point that we have to get sorted,” she said. “The notion your cellphone isn’t private unless it’s password protected is problematic.”

The association does not have an official position on the matter at this time, Vonn added.

Leonard Krog, Nanaimo NDP MLA and a lawyer, said the ruling points out how complex it has become for police to pursue criminals in a world where communication is made with all kinds of electronic devices.

“How does the law catch up with technology and balance the rights to privacy?” he asked.