OK for police to search cellphone if no password, says court
The Canadian Press
Posted: Feb 20, 2013 10:00 PM ET
Last Updated: Feb 21, 2013 7:27 AM ET
Ontario's highest court has signalled that the right of police officers to look through someone's phone depends on whether there's a password.
The Court of Appeal for Ontario says it's all right for police to have a cursory look through the phone upon arrest if it's not password protected, but if it is, investigators should get a search warrant.
The court's ruling comes in the case of a man who appealed his robbery conviction, arguing that police breached his charter rights by looking through his phone after his arrest.
Kevin Fearon was arrested in July 2009, after a jewelry stall at a flea market in Toronto was robbed, and police found pictures of a gun and cash as well as a text message about jewelry on his phone.
The Appeal Court denied his appeal, saying that police were allowed to look through Fearon's phone "in a cursory fashion" to see if there was evidence relevant to the crime, but after that they should have stopped to get a search warrant.
The court says if the phone had been password protected or otherwise locked to anyone other than its owner, "it would not have been appropriate" to look through the phone without a search warrant.
The Appeal Court judges referenced a decision in a murder case in which the judge did not allow evidence from a personal electronic device because it "functioned as a mini-computer," which has a high expectation of privacy. The contents of that device were only extracted by a police officer using specialized equipment in that case, the Appeal Court judges noted.
"There was no suggestion in this case that this particular cell phone functioned as a 'mini-computer' nor that its contents were not 'immediately visible to the eye,' the court said in its ruling, released Wednesday.
"Rather, because the phone was not password protected, the photos and the text message were readily available to other users."
The court, though, declined to create a specific new rule for all cellphone searches.
"It may be that some future case will produce a factual matrix that will lead the court to carve out a cellphone exception to the law," the ruling said. "To put it in the modern vernacular: 'If it ain't broke, don't fix it."'
Latest Ottawa News Headlines
- Toronto Mayor Rob Ford denies crack cocaine allegations
- Toronto Mayor Rob Ford has vehemently denied allegations that he was seen on a cellphone video smoking what appeared to be crack cocaine. more »
- Orleans man dies from stabbing injuries
- An Ottawa man who was stabbed at his home in Orleans has died in hospital, according to his family. more »
- Ottawa Race Weekend running tips
- We hosted a live chat with Ottawa Running Club head coach Geordie McConnell on last-minute race tips for runners of all levels of experience. Watch the replay. more »
- Ottawa Race Weekend road closures
- There are several temporary road closures in the city during Ottawa Race Weekend. more »
Top News Headlines
- Washington police blame bridge collapse on Alberta trucker
- Washington State police say an Alberta trucker was responsible for hitting a steel beam precipitating a bridge collapse on one of the busiest routes in the American northwest. more »
- Royal Bank pledges not to outsource jobs for cash savings
- Royal Bank has promised it will never outsource a Canadian job to a foreign worker solely to save money. more »
- Canada ranks 3rd last in paid vacations
- Canada ranks third last among economically advanced countries in the amount of paid vacation time it guarantees its workers, a new U.S. study indicates. more »
- Group calls for probe of Tory database used in election robocalls
- The Council of Canadians is calling on the Conservative Party to make a list of everyone who had access to its electoral database during the last federal election and turn the information over to the RCMP and the commissioner of elections. "Anything less at this point would be a coverup," the council said in a press release Friday. more »
- Via Rail train involved in fatal crash in eastern Ontario
- Orleans man dies from stabbing injuries
- Hutt changed story, said he burned wife accidentally
- The Ottawa Senators love their dogs
- Reopen casino debate, Ottawa councillor urges
- Fire destroys 100-year-old barn near Kemptville, Ont.
- Mike Duffy says he wants to give Canadians 'the whole story'
- Woman pleads for help after daughter kidnapped in Haiti
- Finding inspiration for the Sens