Cell Phone Evidence and Your Calgary Criminal Defence Case

If you've glanced at a newspaper or caught the news on TV in the past few days, you've likely seen something about the recent Supreme Court ruling that deemed it legal for police officers and other law enforcement agents in Canada to search suspects' cell phones without a warrant. Misunderstandings and speculation regarding this ruling are running rampant, despite the fact that the direct practical implications remain to be seen, so some straight talk from an experienced Calgary criminal defence lawyer might provide some useful insight.

If you have a criminal defence case pending that in some way relates to evidence obtained through a warrantless search of your cell phone, computer tablet, or other portable computer, or if you simply want to stay up to date on your rights as a Canadian, read on for a quick lesson on what law enforcement can and can't do when it comes to searching your property in light of this new ruling.

What the New Ruling Means for Your Calgary Criminal Defence Case

First and foremost, Calgary police officers and other law enforcement agencies do NOT have the right to stop anyone on the street and demand to search their cell phone. Even if they have a reasonable reason to detain you, they do not necessarily have the right to search you or your cell phone. If you're pulled over for a traffic violation in downtown Calgary, the officer cannot demand to search your cell phone or other personal property simply because they feel like it they must have a reasonable cause to believe that you have been involved in a crime and that a search will turn up evidence of that crime.

When it comes to searching through a cell phone's stored information and communication history the Court held:

First, the scope of the search must be tailored to the purpose for which it may lawfully be conducted. In other words, it is not enough that a cell phone search in general terms is truly incidental to the arrest.  Both the nature and the extent of the search performed on the cell phone must be truly incidental to the particular arrest for the particular offence. In practice, this will mean that, generally, even when a cell phone search is permitted because it is truly incidental to the arrest, only recently sent or drafted emails, texts, photos and the call log may be examined as in most cases only those sorts of items will have the necessary link to the purposes for which prompt examination of the device is permitted. But these are not rules, and other searches may in some circumstances be justified. The test is whether the nature and extent of the search are tailored to the purpose for which the search may lawfully be conducted.

This is still shy of the judge-issued warrant usually required to search someone's car or home, but gives law enforcement much narrower latitude than many of the headlines would have you believe. Without a specific, valid reason to search through your phone, and without a detailed record of why and how the search was conducted, a police officer in Calgary or anywhere else in Canada will likely be violating Section 8 of the Canadian Charter of Rights and Freedoms if they look through your phone's history without your permission.

It's important to remember that judges don't make laws, they make decisions about laws based on a specific case they have in front of them. This ruling, while important, does not spell out precisely when a warrantless cell phone search would be legal and lead to evidence that is permissible in a criminal proceeding, it simply opens the door for some of those searches and some of that evidence to be collected in keeping with the law. An experienced criminal defence lawyer can help you understand the implications of this ruling on your specific case.