The logic (?) behind the ruling is kind of hard to figure out but it seems to suggest if your phone isn’t locked your contents are readily available for anyone to see so no search warrant is necessary. Kind of like if your briefcase and files aren’t locked anyone can see them so the police can go through them without any kind of legalities.
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.
“Rather, because the phone was not password protected, the photos and the text message were readily available to other users.”
A modern day device is NOT a mini-computer? Really? How long were these guys locked in that chamber for?
The Canadian Civil Liberties Association intervened, arguing phones should not be searched at all after an arrest, absent urgent circumstances.
The Criminal Lawyers’ Association of Ontario took a similar position but would permit the police to make a cursory search of the phone to determine if it contained relevant evidence.
Susan Chapman, who argued on behalf of the Criminal Lawyers’ Association, said the court didn’t consider the seriously private nature of cellphones. “Text messaging is basically the equivalent of a modern wire tap. The court really understated the expectation of privacy that Canadians have in their cellphones,” she said.
For Chapman, the verdict was a disappointment. “This is a very insidious practice. There has to be some limits on the ability of police access.”
So now if a police officer needs to fish for evidence of a crime, like they do with strip searches, they can go a step further and browse your text messages , photos, e-mails, online history, and contacts.
You can see it happening now:
Officer: “Unlock your phone.”
Officer: “Saying no gives me reasonable suspicion. You’re under arrest.”