SEARCH AND SEIZURE OF CELLULAR PHONES

The Ontario Court of Appeal released a decision today which holds that the police have the right to search through the electronic contents of an accuseds seized cellular phone, so long as the phone is not password protected. The practical implications of this ruling are immense. In practice, many accuseds do not have password protected phones. Indeed, many phones do not have the ability to be password protected at all. Regardless, it is a routine occurrence for an accused to have a cellular phone in his property upon arrest. In this respect, as an Ottawa criminal lawyer, it is a relatively common event to hear an accused make a claim that upon arrest, the officer started fishing through the seized phone, presumably in search of information. The information garnered could constitute direct evidence, for example, in a criminal harassment case where the content of the messages seen on the phone constitute the criminal offence (i.e. crass text messages to an ex-girlfriend). Alternatively, the information gathered could constitute general intelligence, for the purpose of creating links to be stored in the Ottawa Police database (i.e. Mr. X had contacts Mr. Y and Mr. Z in his phone on January 3, 2013; both Mr. Y and Mr. Z are known drug dealers.) That brand of information could later be used to pad warrants or wire taps. In either case, depending on what is found within the phone, the evidence is likely, based on the Fearson case, to be available for prosecutorial use. While a full scope analysis of this particular case is beyond the mandate of this blog, what has become apparent in the last 5 years is that the courts are slowly grinding away at the protections once available for accuseds upon arrest. In todays pro-prosecution environment, it is imperative that those charged with a criminal offence arm themselves with the most capable criminal defence lawyer in their corner to ensure that all available avenues of attack are examined.