Supreme Court rules

[tool001]

Posting using phone...title got screwed up..


US Court recently voted opposite in a similar hearing. (warrant needed to search phone)

Canada police 'can search phones' after arrest - BBC News

Canadian police can search the contents of a mobile phone after arrest, the Supreme Court of Canada has ruled.
In a 4-3 decision, the court said a warrant was not needed as long as the search is directly related to the suspected crime and records are kept.
The dissenting judges argued phones were an "intensely personal and uniquely pervasive sphere of privacy".
The outcome is opposite from a similar case decided in the US Supreme Court in June.
In a unanimous decision, the US high court said searches of mobile phones must require a warrant, with few exceptions.
Canada's lower courts were previously divided on the issue.
'Overly complicated'
On Thursday, the Supreme Court of Canada ruled in the case of Kevin Fearon, who was convicted of robbery with a firearm after police searched his phone.
The search was made after he was arrested but before police had a warrant to search his vehicle and other belongings.
They found a draft text message in his phone with a picture of a gun and the words "We did it".
The high court dismissed Fearon's appeal against his conviction, but outlined rules for how police should handle mobile phone searches.
People walk outside the Supreme Court of Canada 15 October 2014 in Ottawa, Ontario.
The decision was split 4-3
"In my view, we can achieve that balance with a rule that permits searches of cell phones incident to arrest, provided that the search - both what is searched and how it is searched - is strictly incidental to the arrest and that the police keep detailed notes of what has been searched and why," Justice Thomas wrote in the opinion.
The three judges in the minority said existing law "already provides flexibility where there are exigent circumstances" for a warrantless search, including safety of the public or to prevent destruction of evidence, and should be limited to these instances.
"The intensely personal and uniquely pervasive sphere of privacy in our personal computers requires protection that is clear, practical and effective," Judge Andromache Karakatsanis wrote for the minority
The majority had provided an "overly complicated template" for police to follow, she added.

[tmc22]

I have mixed views with this. On one hand, if I have nothing to hide, then I might as well allow the cops to search my phone. But on the other hand, this is essentially giving more powers to the police to invade our personal privacy.

[Manic!]

If you lock your phone the police can't search it.

[Soundy]

Originally Posted by tool001

Posting using phone...title got screwed up..

Oh, the irony...

[Godzira]

Originally Posted by Manic!

If you lock your phone the police can't search it.

are criminals smart enough to realize this?

[6o4__boi]

hahhaha i remember watching an episode of border security where they got this guy who said he "forgot" his berry's pass.
They tried everything but in the end they couldn't do anything.

i'd say the same if my phone ever gets confiscated.

[melloman]

Originally Posted by Manic!

If you lock your phone the police can't search it.

Cops are dicks, you can lie through your teeth about not knowing your password, and they'll probably just say fine, you're being charged with not co-operating with an investigation.

I just delete messages and phone calls once a week. It saves up that tiny amount of extra space I can use for saving more pictures.

[ancient_510]

Originally Posted by melloman

Cops are dicks, you can lie through your teeth about not knowing your password, and they'll probably just say fine, you're being charged with not co-operating with an investigation.

Shut your mouth. Say nothing. Use a "password" and not a "gesture" or "fingerprint" to unlock.
Nobody can force you to disclose your password. Anything you say can only harm you.

2010 QCCA 1108 - No.: 500-10-004195-085
Regarding whether, under subsection 24(2) of the Charter, using this evidence would likely bring the administration of justice into disrepute, he noted that the respondent was compelled to hand over his computer password to Detective Sargeant Cloutier and, therefore, was conscripted into providing evidence against himself.

I feel that soon the procedure at traffic stops for use of electronic devices will be "give me your phone" and then the charging officer will take a photo of the call log, recent SMSes, and recent emails to further prove their case. I can nearly guarantee that there will be further investigation if they notice something "unusual" in their initial perusal of your phone.

[geeknerd]

Originally Posted by tmc22

I have mixed views with this. On one hand, if I have nothing to hide, then I might as well allow the cops to search my phone. But on the other hand, this is essentially giving more powers to the police to invade our personal privacy.

would you let a stranger go through your phone when you have nothing to hide? its essentially the same when it comes to cops so why would you let them. fuck the po-po (in these aspects).

[CRS]

Originally Posted by geeknerd

would you let a stranger go through your phone when you have nothing to hide? its essentially the same when it comes to cops so why would you let them. fuck the po-po (in these aspects).

It's not the same at all.

[Gucci Mane]

Cops can only search your phone if you get arrested anyways.. So what does it matter? They're not gonna search through your phone for a fucking traffic violation. If you're a criminal, you've got no fucking rights.

As for CBSA or at the border, yeah if you get pulled aside by them, they're allowed to search through your phone.

[Manic!]

Originally Posted by geeknerd

would you let a stranger go through your phone when you have nothing to hide? its essentially the same when it comes to cops so why would you let them. fuck the po-po (in these aspects).

I let a stranger grope me almost every time I get on a plane. Also in Canada you have the right to remain silent. So when they ask for your password keep your mouth shut.

[Manic!]

.........

[van_city23]

Originally Posted by Knight_KB

Cops can only search your phone if you get arrested anyways.. So what does it matter? They're not gonna search through your phone for a fucking traffic violation. If you're a criminal, you've got no fucking rights.

As for CBSA or at the border, yeah if you get pulled aside by them, they're allowed to search through your phone.

You don't become a criminal upon just being arrested. I'm sure you would be crying if you got arrested and lost all your rights without a court determining that you're a criminal. Even then, you don't lose your basic rights. Whether or not you should is a different issue.

But I think your point is, it's upon search incident to arrest where they can search your phone if have reasonable grounds to do so, to which I agree with your point. A traffic ticket isn't an arrest. They are supposed to take detailed notes and only search as much as necessary but i'm sure that will be abused. The thing is, the police already have the power to search you and your phone through the criminal code based on reasonable grounds when it comes to search incident to arrest. I don't think this case really changes much other than providing police with a SCC decision of justifying a search of your phone rather than quoting whatever provision in the criminal code.

I think it matters in the small scenario where say you get arrested for whatever reason, maybe being a intervener in a fight where you aren't really doing anything "criminal." The police then gets a hold of your phone and finds pictures of a few months ago where you and some friends had a bunch of weed or coke for personal use. Just becomes more bullshit you have to deal with which wouldn't have otherwise came up. Although the chances of something like this are very little and I doubt police would really do that.

Either way, I don't think this makes a difference in how things are being done now. If you were dealing drugs and get arrested, theres no difference with a cop searching your phone while you're sitting in the car waiting to get taken to jail compared to them taking you to jail and while you're sitting there they get a warrant, which they will no doubt be granted, and search it. This just speeds up the process.

[Mr.HappySilp]

Originally Posted by Manic!

I let a stranger grope me almost every time I get on a plane. Also in Canada you have the right to remain silent. So when they ask for your password keep your mouth shut.

Wouldn't this just lead to the cops try even harder to look up your file and delay what you are doing. To be honest I don't really much. All I have on my phones are songs and pics I took the week before. I upload all my pics to drop box and everytime I am done I log out.

[ancient_510]

Originally Posted by Mr.HappySilp

Wouldn't this just lead to the cops try even harder to look up your file and delay what you are doing.

Legally speaking? It shouldn't if the police officer knows that evidence of silence to establish anything would likely be considered irrelevant.
R. v. Turcotte, [2005] 2 SCR 519, 2005 SCC 50

Since there was no duty on Mr. Turcotte’s part to speak to the police, his failure to do so was irrelevant; because it was irrelevant, no rational conclusion about guilt or innocence can be drawn from it; and because it was not probative of guilt, it could not be characterized for the jury as “post-offence conduct”.

In practice? It's up to the police to use their discretion in investigating you. If you're being suspicious as fuck and not saying a word, they will be as suspicious as fuck towards you. Sure the reason for continued investigation or probable cause for search may not "officially" be you being silent; but it sure will cause them to continue detective work to find something else.

In personal experience? I've never replied to a question that a police officer has asked me. I was never delayed more than 2-3 minutes.
Silent situations include driving through road checks, side of the road interviews after speeding ("do you know what the speed limit is here?"), and once when walking through my neighborhood pulling a rolling suitcase after a string of recent break ins.

[$_$]

Originally Posted by ancient_510

Legally speaking? It shouldn't if the police officer knows that evidence of silence to establish anything would likely be considered irrelevant.
R. v. Turcotte, [2005] 2 SCR 519, 2005 SCC 50

Since there was no duty on Mr. Turcotte’s part to speak to the police, his failure to do so was irrelevant; because it was irrelevant, no rational conclusion about guilt or innocence can be drawn from it; and because it was not probative of guilt, it could not be characterized for the jury as “post-offence conduct”.

In practice? It's up to the police to use their discretion in investigating you. If you're being suspicious as fuck and not saying a word, they will be as suspicious as fuck towards you. Sure the reason for continued investigation or probable cause for search may not "officially" be you being silent; but it sure will cause them to continue detective work to find something else.

In personal experience? I've never replied to a question that a police officer has asked me. I was never delayed more than 2-3 minutes.
Silent situations include driving through road checks, side of the road interviews after speeding ("do you know what the speed limit is here?"), and once when walking through my neighborhood pulling a rolling suitcase after a string of recent break ins.

What do you do in those situations? You obviously have to stop when they ask you to. What do you say to their questions then?

[ancient_510]

Originally Posted by $_$

What do you do in those situations? You obviously have to stop when they ask you to. What do you say to their questions then?

[$_$]

Originally Posted by ancient_510

You have to at least give them your name no?

[sho_bc]

Originally Posted by van_city23

You don't become a criminal upon just being arrested. I'm sure you would be crying if you got arrested and lost all your rights without a court determining that you're a criminal. Even then, you don't lose your basic rights. Whether or not you should is a different issue.

But I think your point is, it's upon search incident to arrest where they can search your phone if have reasonable grounds to do so, to which I agree with your point. A traffic ticket isn't an arrest. They are supposed to take detailed notes and only search as much as necessary but i'm sure that will be abused. The thing is, the police already have the power to search you and your phone through the criminal code based on reasonable grounds when it comes to search incident to arrest. I don't think this case really changes much other than providing police with a SCC decision of justifying a search of your phone rather than quoting whatever provision in the criminal code.

I think it matters in the small scenario where say you get arrested for whatever reason, maybe being a intervener in a fight where you aren't really doing anything "criminal." The police then gets a hold of your phone and finds pictures of a few months ago where you and some friends had a bunch of weed or coke for personal use. Just becomes more bullshit you have to deal with which wouldn't have otherwise came up. Although the chances of something like this are very little and I doubt police would really do that.

Either way, I don't think this makes a difference in how things are being done now. If you were dealing drugs and get arrested, theres no difference with a cop searching your phone while you're sitting in the car waiting to get taken to jail compared to them taking you to jail and while you're sitting there they get a warrant, which they will no doubt be granted, and search it. This just speeds up the process.

Incorrect. The law isn't as black and white as the words in the Criminal Code. Caselaw provides clarity and interpretation on the way the law is written, sometimes making it nul and void. In the case of this new decision, it has made a huge difference to police. Previous caselaw had said that police couldn't search a phone incidental to arrest and a warrant was needed (R v MANN). Before that, you could search incidental to arrest. This brings it close to the way it had been, but obviously with greater restrictions and onus on the police to be accountable for what they are looking for/being reasonable with their search, not on a so-called fishing expedition.

[ancient_510]

Originally Posted by $_$

You have to at least give them your name no?

I present my driver's licence as required by law when driving.
I'm not an idiot, just an asshole.