This case concerns an issue that is arising with increasing frequency in the law enforcement context: whether the power to search incident to a lawful arrest includes the authority to search the contents of cell phones.
Mr. Mann was twice arrested in connection with an alleged kidnapping. On both occasions, his Blackberry cell phone was seized from him. Both phones were eventually sent for data extraction, which was completed after a significant period of time had passed from the initial seizure of the phones. The analysis of the smartphones captured every piece of data generated by the user.
The BCCLA was granted leave to intervene in this case. The BCCLA argued that applying the traditional rule of search incident to arrest to mobile devices would significantly undermine privacy rights and greatly expand warrantless police search powers. The BCCLA argued that warrantless searches of cell phones violate the Charter’s section 8 right to be free from unreasonable search and seizure in all circumstances.
On June 18, 2014, the BC Court of Appeal released its judgment in this case. The Court of Appeal held that warrantless searches of cell phones violated section 8 of the Charter. According to the Court, the law no longer permits police to conduct warrantless searches of the entire contents of an individual’s cell phone. The Court declined to make a ruling about whether a warrantless “cursory search” of a cell phone would be permissible. Although the evidence was obtained in violation of the Charter, the Court went on to find that it should not be excluded as its admission would not bring the administration of justice into disrepute.
The BCCLA is represented by Brent Olthuis and Eileen Patel of Hunter Litigation Chambers.
BC Court of Appeal