R. v. Hiscoe, 2013 NSCA 48

NOVA SCOTIA COURT OF APPEAL Citation: R. v. Hiscoe , 2013 NSCA 48 Date: 20130423 Docket: CAC 386719 Registry: Halifax Between: Her Majesty the Queen (Public Prosecution Service of Canada) Appellant v. Jamie Scott Hiscoe Respondent Judge: The Honourable Justice Linda Lee Oland Appeal Heard: October 10, 2012, in Halifax, Nova Scotia Subject:

Section 8 Charter - Search Incident to Arrest - Cell Phones

Summary: When the police arrested the respondent, they seized his cell phone and read recent messages then and, for transcription purposes, later that day. Almost a month later, they downloaded everything on the cell phone. The respondent was charged with possession of cocaine for the purpose of trafficking. The trial judge excluded from the evidence the full content download, except the text messages twice retrieved on the day of the arrest. He found the respondent not guilty of the trafficking charge, and guilty only of simple possession.

Issue: Whether, in relation to the full content download or “ data dump ” of the respondent ’ s cell phone, the judge erred in law in finding a breach of s. 8 of the Charter . Result: Appeal dismissed. The judge did not err in law in finding that the warrantless full content download infringed s. 8 of the Charter. Searches without a warrant are prima facie unreasonable and contrary to s. 8, which guarantees the right to be secure against unreasonable search or seizure, and aims to protect against unjustified state intrusion upon the right to privacy.

While searches incident to arrest are an exception, their use is subject to limitations. The cell phone was capable of storing gigabytes of data, and technological advances allow people to carry all of their personal information on such devices. The burden was on the Crown to justify the full content download. Where it presented no evidence of any reason for the month long delay or of any exigent circumstances, the judge did not err in drawing a negative inference.

Nor did he err in deciding that the scope of the search was too broad and that the police were not searching incident to arrest, but in furtherance of their investigation which is not permitted.

This information sheet does not form part of the court ’ s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 29 pages. NOVA SCOTIA COURT OF APPEAL Citation: R. v. Hiscoe , 2013 NSCA 48 Date: 20130423 Docket: CAC 386719 Registry: Halifax Between: Her Majesty The Queen (Public Prosecution Service of Canada) Appellant v. Jamie Scott Hiscoe Respondent Judges: Oland, Hamilton and Beveridge, JJ.A.

Appeal Heard: October 10, 2012 in Halifax, Nova Scotia Held: Appeal dismissed, per reasons for judgment of Oland, J.A.; Hamilton and Beveridge, JJ.A., concurring Counsel: David Schermbrucker and Suhanya P. Edwards, for the appellant Kenneth C. Greer, for the respondent Reasons for judgment : [ 1 ] When the police arrested Jamie Hiscoe, they seized his cell phone and read recent text messages. Later that day, they read those messages again and, a month later, they had all the contents of the cell phone downloaded onto a DVD.

At trial, the Crown sought to introduce some of this information into evidence. [ 2 ] The issue on this appeal concerns the authority of the police to search incident to arrest. More particularly, the question is whether the trial judge erred in law in finding a breach of s. 8 of the Charter in relation to the full content download or “ data dump ” of the respondent ’ s cell phone. [ 3 ] The Crown appeals. For reasons which I will develop, I would dismiss the appeal. Facts [ 4 ] Mr.

Hiscoe was charged with possession of cocaine for the purpose of trafficking on August 18, 2010, contrary to s. 5(2) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19 ( “ CDSA ” ) . At trial, he applied for exclusion of certain evidence on the basis that the search of his cell phone violated his rights under s. 8 of the Charter to be secure against unreasonable search and seizure and that s. 24(2) required the exclusion of the evidence found in the search. (

a) The Voir Dire [ 5 ] Judge Alan T. Tufts of the Provincial Court of Nova Scotia held a voir dire to determine the admissibility of evidence. In his voir dire decision cited as R. v. Hiscoe , 2011 NSPC 84 , he set out the facts surrounding Mr. Hiscoe ’ s arrest and police actions regarding his cell phone: [13] Prior to the arrest the police had the accused under surveillance for some time throughout the day. They had information about his alleged drug activities. They followed him into a drive-in-theatre where they witnessed an exchange between him and the driver of the second vehicle.

The accused was driving the vehicle and his mother was in the passenger's front seat. When this exchange took place the accused was arrested. The police found cash in the vehicle of the other driver and a bag of cocaine on the ground between the two vehicles. During the arrest procedure Constable Foley seized the accused's cell phone which was on the seat of his car. It was described as a "smart phone like a Blackberry". It did not have a password. [14] At the arrest scene Constable Foley opened the cell phone and reviewed a number of text messages.

Constable Foley explained that he seizes cell phones in instances where persons are arrested for trafficking in drugs. He explained that cell phones often contain score sheets, records of drug debts, contacts of other persons and text messages and phone calls in the time leading up to the offence

which indicate a negotiation of drug prices and amounts, meeting places and other pertinent details. He said that this information is time sensitive as it may disclose possible stash locations and locations of weapons. [15] Constable Foley also testified that it is possible that information on cell phones can be deleted remotely. Because of this Constable Foley indicated that he reviewed the text messages and later that evening when more time was available he transcribed the messages after Constable Campbell dictated them to him.

On September 21, 2010 Constable Campbell took the cellphone to the RCMP Technological Crime Unit in Dartmouth, at which time the entire contents of the phone were downloaded and placed on a DVD. It is the observations made by Constable Foley at the arrest scene, the transcribed notes of the text messages made later that evening and the DVD of the full contents of the cell phone which are the subject of the accused's application. [ 6 ] Thus the police conducted three separate examinations of information on the respondent ’ s cell phone: (

a) at the scene of the arrest, when Cst. Foley reviewed recent texts in a cursory fashion, (

b) again on the evening of the arrest, when those messages were transcribed, and (

c) about a month later, when the entire contents of the cell phone were downloaded onto a DVD. [ 7 ] Under cross-examination, Cst. Foley agreed that after his examination of the cell phone at the scene of the arrest, there were no exigent circumstances that prevented him from obtaining a search warrant before the second examination. He also agreed that after finding these text messages, he had all the information he needed from the cell phone. [ 8 ] Approximately a month after the arrest, lead investigator Cst. Campbell took Mr. Hiscoe ’ s cell phone to the RCMP Tech Crime Unit.

There, everything on it was downloaded onto a DVD. That information included a contact list, phone logs, a record of calls to and from the cell phone, the content of incoming and outgoing text messages, and half a dozen photographs. [ 9 ] Because the cell phone had been seized upon arrest as part of the investigation and he was already aware of the kind of information on it, Cst. Campbell did not believe that a search warrant was needed when he helped Cst. Foley transcribe the texts read at the scene of the arrest.

He agreed that he had time to get a search warrant as there were no exigent circumstances; however, he felt he did not need a warrant. Cst. Campbell explained that the download to DVD format enabled “ easy reference ” for the Crown and defence counsel. [ 10 ] After the evidence on the voir dire concluded in June 2011, the matter was adjourned, written submissions were filed, and oral submissions were given on October 3, 2011. On November 17, 2011, the judge gave his decision. He was satisfied that the police lawfully arrested Mr. Hiscoe for possession for the purposes of trafficking in a controlled substance.

After reviewing the law on s. 8 of the Charter and search incident to arrest, the judge determined that the police were authorized to seize the respondent ’ s cell phone, to conduct a cursory review of its text messages at the arrest scene, and to retrieve and record the same information later that same day. However, he concluded that the full content download or “ data dump ” was beyond the scope of a search incident to arrest. [ 11 ] The judge then proceeded to hear the respondent ’ s s. 24(2) application to have the evidence excluded. After applying the three lines of inquiry in R. v.

Grant , 2009 SCC 32 at ¶ 71 to the facts of this case, the judge granted the Charter application. He excluded the full content download, except the text messages twice retrieved on the day of the arrest within the lawful authority of the police. (

b) The Trial [ 12 ] The trial proper for trafficking cocaine proceeded by way of written admissions and agreement to adopt without repetition voir dire testimony. The officers present during the arrest and the Crown ’ s drug expert testified. So did Mr. Hiscoe who, among other things, explained the text messages which had been found admissible at the voir dire . [ 13 ] The trial decision is reported as R. v. Hiscoe , 2012 NSPC 21 . The judge was satisfied beyond a reasonable doubt that the cocaine in the bag on the ground between the cars was in the respondent ’ s possession.

He did not believe the respondent ’ s account of the text messages. After considering the evidence which was limited to the admissible text messages, the quantity of drugs, and the denominations of the bills, he was left with a reasonable doubt whether Mr. Hiscoe possessed the drugs for the purpose of trafficking. Accordingly, the judge found him not guilty of the charge under s. 5(2) of the CDSA . He did, however, find him guilty of the lesser included offence of simple possession of a controlled substance under s. 4(1) of the CDSA .

The Issues on Appeal [14] The Crown submits, and Mr. Hiscoe acknowledges, that if the excluded evidence had been admitted at trial, the outcome couldhave been different. In its appeal from the verdict of acquittal for trafficking, the Crown makes two arguments. First, it submits that thejudge erred in law in finding a breach of s. 8 of the Charter in relation to the search of the respondent's cell phone, specificallyconcerning the complete data download.

Second, it argues in the alternative that the judge erred in law in his application of s. 24(2) ofthe Charter. [15] I would strike the Crown’s alternative ground of appeal. [16] At trial, the Crown told the judge that if any portion of the search related to the cell phone was found to violate s. 8, it was“prepared to let that evidence be ruled inadmissible.” The Crown made no submissions on the s. 24(2) application. On appeal, however,its alternative ground argues that the judge erred with regard to s. 24(2).

Crown counsel candidly admitted to this court that at the voirdire, the Crown had decided not to argue for the admission of the evidence on the s. 24(2) application. It deliberately limited itsarguments to s. 8 of the Charter. [17] The Crown cannot raise arguments on appeal that it chose not to advance at trial: R. v. Varga, (ON CA),[1994] O.J. No. 1111 (C.A.) at ¶ 25, 26, 38 and 40. As Justice Doherty stated in that case, the Crown must live with its strategicdecisions both at trial and on appeal.

The liberty of an accused should not be jeopardized by permitting the Crown to advance an issuefor the first time on appeal. [18] In the result, there is but one issue on this appeal: did the judge err in finding a s. 8 breach in relation to the warrantless fullcontent search of the respondent’s cell phone. Standard of Review [19] The Crown brings its appeal pursuant to s. 676(1)(

a) of the Criminal Code which limits appeals to a question of law alone. Certain components of the trial judge’s decision are based on his findings of fact and mixed fact and law which are owed somedeference. However, whether he erred in finding that the warrantless data download infringed the respondent’s s. 8 Charter rights is aquestion of law, for which the standard of review is correctness. [20] In this regard, the discussion in R. v. Shepherd, 2009 SCC 35 is helpful.

There Chief Justice McLachlin and Justice Charronwriting for the court set out the particular issue in that case and explained how, even though there may be factual elements involvedwhere ss. 8 and 9 of the Charter were alleged to have been breached, the proper standard of review is correctness: [18] In the courts below, the issue arose as to whether the standard of reasonable and probable grounds involves a question of fact or aquestion of law. This issue bears on the question of the appropriate standard of review of the trial judge's decision.

If reasonable andprobable grounds are a question of law, then the standard of review is, of course, correctness. On the other hand, if reasonable andprobable grounds are a question of fact, the standard of review is that of palpable and overriding error.

The issue may also be relevant indetermining whether a court has jurisdiction to hear the appeal, although jurisdiction is not an issue before us. ... [20] While there can be no doubt that the existence of reasonable and probable grounds is grounded in the factual findings of the trialjudge, the issue of whether the facts as found by the trial judge amount at law to reasonable and probable grounds is a question of law.

As with any issue on appeal that requires the court to review the underlying factual foundation of a case, it may understandably seem atfirst blush as though the issue of reasonable and probable grounds is a question of fact. However, this Court has repeatedly affirmed thatthe application of a legal standard to the facts of the case is a question of law: see R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, atpara. 18; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 23. In our view, the

summary conviction appeal judge erred in

failing to distinguish between the trial judge's findings of fact and his ultimate ruling that those facts were insufficient, at law , to constitute reasonable and probable grounds. Although the trial judge's factual findings are entitled to deference, the trial judge's ultimate ruling is subject to review for correctness. [ 21 ] See also R. v.

R.E.W., 2011 NSCA 18 at ¶ 29 - 35 where Justice Beveridge reiterated that whether a Charter right has been infringed or denied is a question of law reviewed on a standard of correctness, but added that not every factor that goes into deciding such a question attracts that standard. Findings of fact, or of mixed law and fact, without an extricable legal component are entitled to deference unless the trial judge made a palpable and overriding error, and he or she is also owed deference when balancing competing interests. Analysis [ 22 ] In his decision, the trial judge described Mr.

Hiscoe ’ s cell phone and its capabilities: [40] Here the cellphone which was seized was described as a "regular smart phone, a Blackberry sort of phone". Phones of this sort have been described as "mini computers". These phones are capable of storing dozens of gigabytes of data not unlike personal or home computers. ...

After a detailed review of the jurisprudence on search incidental to arrest, s. 8 and s. 24(2) of the Charter , he determined that the examination of the smartphone at the scene of the arrest to view recent text messages, and later that day to transcribe those messages, were within the lawful scope of police authority to search incident to Mr. Hiscoe ’ s arrest for possession of a controlled substance for the purposes of trafficking.

That search did not violate his s. 8 rights and thus that evidence was not excluded from evidence. [ 23 ] However, the judge concluded that the complete content download or “ data dump ” of the smartphone was beyond the scope of a search incident to arrest, and violated the respondent ’ s s. 8 rights. He gave several reasons for his conclusion. He observed that the data dump was done almost a month after arrest and the search focussed on the information held in the cell phone. In his opinion, “ most importantly ” the full download search was too broad in its scope and ought to have been constrained.

It was his view that the police were searching not incident to arrest, but in furtherance of their investigation. Pursuant to s. 24(2) of the Charter , he excluded the evidence from that content download from evidence. Later, I will review the judge ’ s reasons in greater detail. [ 24 ] At this point it is useful to set out an outline of how I will proceed with the analysis. I will begin with what is, and what is not, contested on this appeal followed by the Crown ’ s position.

Then I will summarize the law on search incident to arrest, before examining the jurisprudence concerning s. 8 and the contents of computers and cell phones. Finally, I will examine the trial judge ’ s reasons and the errors alleged to have been committed by him. What is, and What is Not Disputed [ 25 ] On appeal, it was undisputed that: (

a) the police had grounds to arrest Mr. Hiscoe at the drive-in for the indictable offence of possession of controlled drugs for the purpose of trafficking; (

b) the respondent had a reasonable expectation of privacy in the contents of his smartphone; (

c) the seizure of his cell phone was lawful under the search incident to arrest power, because it was on the driver ’ s seat at the time of the respondent ’ s arrest and Cst. Foley had a reasonable basis to believe that it contained text messages relating to the apparent drug meeting with the driver of the second car;

(

d) each of the three occasions when the police examined and retrieved information from his cell phone constituted a warrantlesssearch; and (

e) the police examinations of the cell phone at the scene of the arrest to view recent text messages and later that day to transcribe thosemessages was within the lawful scope of police authority to search incident to arrest. These searches at the scene of the arrest and for transcription are described as “cursory searches”. As will be seen, the treatment of suchsearches is not consistent in the case law. [26] What is contested on this appeal is the judge’s finding that the complete data download of the smartphone’s contents exceededthe scope of the power of search incident to arrest.

The Crown’s Position [27] The Crown’s position on its appeal is that once the police lawfully seized the cell phone, they lawfully possessed all theinformation contained in the device. In the overview in its factum, the appellant explained: 7. The coexistence of highly relevant incriminating evidence and highly personal irrelevant information on the same device creates atension between the valid police objective of discovering evidence and the individual’s right to privacy. When applied correctly, thepower of search incident to arrest strikes the right balance between these competing interests. 8.

The appellant says that where the police lawfully arrest a person for an offence, and seize the arrestee’s smartphone or other devicein the reasonable expectation of finding evidence of the offence, the power to search incident to arrest includes the ability not only toseize and conduct a cursory examination of the smartphone but also the ability to later perform a more detailed retrieval of its contents. A further search warrant is not required.

The important limiting factor is that any examination of data - cursory or otherwise - must trulybe authorized by the original power of search incident to arrest: namely, in pursuit of a reasonable basis to believe that the examinationwill afford evidence of the original offence. In essence, the Crown argues that a cell phone properly seized as truly incident to a lawful arrest can be searched without restriction inall cases.

The respondent summarized this argument as “Seize-a-phone, Search-a-phone.” When the appeal was heard, there was littleappellate authority pertaining to examination of the content of cell phones in these circumstances. The Crown seeks guidance and clarityfrom this court so that police officers will know what can and cannot be done with cell phones seized when a person is arrested. [28] The Crown maintains that it is not asking for any expansion of the law on search incident to arrest. It submits that its argumentis supported by the case law and that the trial judge erred in exempting the full content download.

Search Incident to Arrest and Cell Phones [29] In order to explain the positions taken by the parties and the judge’s reasoning, I must consider the jurisprudence on searchincidental to arrest, its parameters, and the right to privacy. This necessarily incorporates an examination of decisions which involvecomputers and cell phones. [30] The analytic starting point is, of course, s. 8 of the Charter which guarantees everyone “the right to be secure againstunreasonable search or seizure”. That provision aims to protect individuals from unjustified state intrusions upon their privacy.

The lawis clear and well-established that such intrusions require prior authorization. Usually that authorization is in the form of a warrant. Theonus rests on the state to demonstrate the superiority of its interest to that of the individual. See Hunter et al. v. Southam Inc., (SCC), [1984] 2 S.C.R. 145 at p. 160.

[31] Where a person has a reasonable privacy interest in the subject matter of the state action, an inspection is a search and a takingis a seizure. See R. v. Tessling, 2004 SCC 67 at ¶ 18. Whether a person has a reasonable expectation of privacy depends on the “totalityof the circumstances”: Tessling at ¶ 31. The test includes inquiries into whether the person had a subjective expectation of privacy inthe subject matter, and whether such subjective expectation was objectively reasonable.

As mentioned earlier, the parties agree that therespondent had a reasonable expectation of privacy in the contents of his cell phone. [32] Where a search is carried out without a warrant, it is presumptively unreasonable: Hunter at p. 161; R. v. Nolet, 2010 SCC 24,at ¶ 21. Once the appellant has shown that the search was without a warrant, the Crown has the burden of showing that, on a balance ofprobabilities, the search was a reasonable one.

Unless the search was authorized by law, the law itself is reasonable and the manner inwhich the search was carried out is reasonable, a warrantless search will violate s. 8. See R. v. Collins, (SCC), [1987] 1S.C.R. 265 at ¶ 22 and 23; Nolet, at ¶ 21. [33] The power to search incident to arrest is a well-recognized exception to the principles set out in Hunter regarding the s. 8Charter right to be secure from unreasonable search and seizure. Such searches do not require prior judicial authorization.

However, thecommon law exception of search incident to arrest is itself subject to limitations imposed by the court to protect an individual’s right ofprivacy. [34] The leading case on the principles governing search incident to arrest and the scope of that power remains R. v. Caslake, (SCC), [1998] 1 S.C.R. 51. Writing for the majority of the court, Chief Justice Lamer reviewed the restrictions identified inCloutier v. Langlois, (SCC), [1990] 1 S.C.R. 158, and observed that there were no readily ascertainable limits on thescope of search incident to arrest.

He continued: 17 In my view, all of the limits on search incident to arrest are derived from the justification for the common law power itself:searches which derive their legal authority from the fact of arrest must be truly incidental to the arrest in question. The authority for thesearch does not arise as a result of a reduced expectation of privacy of the arrested individual. Rather, it arises out of a need for the lawenforcement authorities to gain control of things or information which outweighs the individual’s interest in privacy. ...

This means,simply put, that the search is only justifiable if the purpose of the search is related to the purpose of the arrest. [Emphasis added] [35] The Chief Justice explained the purposes of search incident to arrest, and the requirement that the search must have a validobjective and be truly incidental to the arrest.

He also addressed the standard to be met before a search can be undertaken, is not that ofreasonable and probable grounds: 19 As L’Heureux-Dubé J. stated in Cloutier, the three main purposes of search incident to arrest are ensuring the safety of the policeand public, the protection of evidence from destruction at the hands of the arrestee or others, and the discovery of evidence which can beused at the arrestee’s trial. The restriction that the search must be “truly incidental” to the arrest means that the police must beattempting to achieve some valid purpose connected to the arrest.

Whether such an objective exists will depend on what the police werelooking for and why. There are both subjective and objective aspects to this issue. In my view, the police must have one of the purposesfor a valid search incident to arrest in mind when the search is conducted. Further, the officer’s belief that this purpose will be served bythe search must be a reasonable one. 20 To be clear, this is not a standard of reasonable and probable grounds, the normal threshold that must be surpassed before asearch can be conducted.

Here, the only requirement is that there be some reasonable basis for doing what the police officer did. Togive an example, a reasonable and probable grounds standard would require a police officer to demonstrate a reasonable belief that anarrested person was armed with a particular weapon before searching the person. By contrast, under the standard that applies here, thepolice would be entitled to search an arrested person for a weapon if under the circumstances it seemed reasonable to check whether theperson might be armed. Obviously, there is a significant difference in the two standards.

The police have considerable leeway in thecircumstances of an arrest which they do not have in other situations. At the same time, in keeping with the criteria in Cloutier, theremust be a “valid objective” served by the search.

An objective cannot be valid if it is not reasonable to pursue it in the circumstances ofthe arrest. [Emphasis by Lamer, C.J.] [36] Chief Justice Lamer emphasized that the limits on search incidental to arrest must be respected: 25 . . . the police must be able to explain, within the purposes articulated in Cloutier, supra (protecting the police, protecting theevidence, discovering evidence), or by reference to some other valid purpose, why they searched. They do not need reasonable and

probably grounds. However, they must have some reason related to the arrest for conducting the search at the time the search wascarried out, and that reason must be objectively reasonable. Delay and distance do not automatically preclude a search from beingincidental to arrest, but they may cause the court to draw a negative inference. However, that inference may be rebutted by a properexplanation. The Supreme Court of Canada confirmed the principles in Caslake in Nolet. [37] Charter jurisprudence includes several cases where constraints were placed on the power to search.

These include limits on theseizure of bodily samples (R. v. Stillman, (SCC), [1997] 1 S.C.R. 607), the search of a dwelling house except in exigentcircumstances (R. v. Godoy, (SCC), [1999] 1 S.C.R. 311) and the strip-search of an arrested person which is subject toadditional reasonable and probable grounds or exigent circumstances (R. v. Golden, 2001 SCC 83). Affronts to human dignity, seriousinterference with bodily integrity and significant invasions of privacy require a higher degree justification for the search and seizure. [38] On this appeal, the Crown argues that the police actions with respect to Mr.

Hiscoe and his smartphone satisfied all legalcriteria, and did not exceed the limits in Cloutier and Caslake. It says that his arrest met the standard of reasonable and probablegrounds, and the seizure and examination of his cell phone met the reduced standard applicable to the power to search incident to arrest,namely a reasonable basis. According to the Crown, the police had a valid objective in seizing and searching the cell phone, namely tolocate and secure evidence of the trafficking offence for which the respondent was arrested. It points out that the trial judge acceptedCst.

Foley’s evidence regarding the seizure and the cursory searches for recent messages and their subsequent transmission. It reiteratesthat Cst. Campbell, who sent the phone for a complete data download, explained that this would make all of its contents accessible “foreasy reference to look at” and he could then provide copies to both Crown and defence counsel “so they can see exactly what is on it.” [39] The Crown submits that the judge erred by then deciding to exclude the full content download.

It identifies the complicatingand distinguishing feature in this search incident to arrest as the technological impediment to access to evidence. For the conceptualframework of its argument, it uses a locked box which creates a physical barrier.

According to the appellant, just as the police can usetools or a locksmith to gain entry to the box, so long as it is reasonable in the circumstances, they can use a technical analyst to gain fullaccess to a smartphone by overcoming barriers such as encryption and password protection, data corruption, hidden content, volume ofdata, and variable set up. [40] The Crown’s arguments take one to the jurisprudence on s. 8 and searches of the contents of technological devices.

Where thecell phone in this case was described as akin to a mini-computer capable of storing many gigabytes not unlike personal or homecomputers, I will begin with a case that deals not with a cell phone, but a home computer. In R. v. Morelli, 2010 SCC 8 the policeobtained a search warrant to search the accused’s home and personal computer. Pornographic pictures were found on his computer, andthe accused was charged with possession of child pornography. Fish J. writing for the majority quashed the conviction on the basis thatthe facts did not amount to possession.

In doing so, he vividly described the effect of a search of a personal computer: [2] It is difficult to imagine a search more intrusive, extensive, or invasive of one's privacy than the search and seizure of a personalcomputer. [3] First, police officers enter your home, take possession of your computer, and carry it off for examination in a place unknown andinaccessible to you.

There, without supervision or constraint, they scour the entire contents of your hard drive: your emails sent andreceived; accompanying attachments; your personal notes and correspondence; your meetings and appointments; your medical andfinancial records; and all other saved documents that you have downloaded, copied, scanned, or created. The police scrutinize as well theelectronic roadmap of your cybernetic peregrinations, where you have been and what you appear to have seen on the Internet -- generallyby design, but sometimes by accident. ... [105] . . . Computers often contain our most intimate correspondence.

They contain the details of our financial, medical, and personalsituations. They even reveal our specific interests, likes, and propensities, recording in the browsing history and cache files theinformation we seek out and read, watch, or listen to on the Internet. [106] It is therefore difficult to conceive a s. 8 breach with a greater impact on the Charter-protected privacy interests of the accused

than occurred in this case. [ 41 ] Morelli established that Canadians may reasonably expect privacy in the information in their personal computers in their own homes. In R. v. Cole , 2012 SCC 53 , the Supreme Court of Canada considered information on work computers. A technician found photographs of a student on a laptop computer issued to a high school teacher. The photographs were copied to a compact disc, its temporary Internet files copied to a second disc, and both CDs were given to the police. They created a mirror image of the hard drive for forensic purposes, without having obtained a warrant.

The teacher was charged with possession of child pornography. [ 42 ] The majority of the Supreme Court of Canada held that s. 8 had been breached. Fish J. on behalf of the majority held at ¶ 8 to 10 that, in comparison to the privacy interest in Morelli where a personal computer was searched and seized from a home, the teacher had a diminished expectation of privacy in his personal information on the laptop.

Nevertheless, a reasonable though diminished expectation remains a reasonable expectation of privacy which is subject to state intrusion only under the authority of a reasonable law, and the Crown could point to no law authorizing a warrantless search of the work laptop. [ 43 ] I turn then to cases involving searches of cell phones seized as incident to arrest. Whether the police are entitled to conduct such searches and under what circumstances has yet to be fully resolved in the case law. There are presently three main lines of authority.

In finding an infringement of the respondent ’ s s. 8 rights, the trial judge followed one of these. [ 44 ] Since neither the Crown nor the respondent argued in its favour, I need not consider the line of authority that states that the police cannot take even a cursory inspection of a cell phone seized incident to arrest without a warrant. See R. v.

Liew , 2012 ONSC 1826 , currently under appeal. [ 45 ] In support of its proposition that the police can examine the entire contents of a cell phone seized incident to arrest so long as they are genuinely looking for evidence of the offence and have a reasonable basis to believe they will find it, the Crown relies on the line of authority based on R. v. Giles , 2007 BCSC 1147 . Decisions which have followed its reasoning include R. v. Otchere-Badu , 2010 ONSC 1059 and R. v.

Cater, 2012 NSPC 2 . [ 46 ] In Giles the police seized the accused ’ s BlackBerry cell phone incident to his arrest for trafficking in cocaine, and weeks later retrieved all the data on the phone. They were looking for items such as "score sheets", phone numbers and bank account numbers connected to the arrest for a drug offence. Justice Anne MacKenzie of the British Columbia Supreme Court (as she then was) found that the seizure, examination of the contents of the BlackBerry and the retrieval of data were truly incident to arrest.

In her view ( ¶ 56), the search was similar to “ looking inside a logbook, diary, or notebook found in the same circumstances ” , and the lawful seizure of the BlackBerry would be meaningless without the ability to examine its contents. [ 47 ] In Cater , Judge Anne Derrick of the Provincial Court of Nova Scotia followed Giles . The cell phone seized incident to arrest provided only basic services, and its contents were accessed at the crime lab. The judge used the Giles analogy to a logbook, diary or notebook.

She concluded that the warrantless search did not violate s. 8 because it was a search incident to arrest, delayed only by the “ best practice standard ” decision to have it accessed by a forensic expert, no compelling human dignity concerns were implicated, and the search was not of a home. Cater was decided after the decision here under appeal. [ 48 ] According to the third line of authority, any examination of a cell phone beyond a cursory examination is not within the power of search incident to arrest, and a search warrant should be obtained. The leading case is R. v. Polius , [2009] O.J. No. 3074 (Ont. Sup.

Ct.) (Q.L.) . In the voir dire decision here under appeal, the judge followed Polius. The Court of Appeal in Ontario has considered Polius twice, namely in R. v. Manley , 2011 ONCA 128 and in R. v. Fearon , 2013 ONCA 106 but, as will be seen, without adopting or rejecting its approach and only in obiter dicta. [ 49 ] In Polius , the accused ’ s cell phone was seized when he was arrested for counselling murder. When examined without a warrant, it disclosed his cell phone number. This the police used to obtain his cell phone records which were tendered into evidence at trial.

Justice Trafford of the Ontario Superior Court found that the officer who seized and examined the cell phone without a warrant did not have a reasonable basis for his belief that it may contain evidence of the alleged offence; as a result, its seizure was not lawful. He went on to consider the parameters of the power to search incident to arrest without prior judicial authorization. In his view, a search warrant was required to examine an item beyond the cursory inspection permitted in certain situations:

41 In my view, the power to SITA [i.e., search incident to arrest] includes a power to conduct a cursory inspection of an item todetermine whether there is a reasonable basis to believe it may be evidence of the crime for which the arrest was made. However, anyexamination of an item beyond a cursory examination of it is not within the scope of the power to SITA. Using other words, theevidentiary value of the item must be reasonably apparent on its face, in the context of all of the information known by the arrestingofficer.

Where the purpose of a SITA is to find evidence of the crime, the standard governing the manner and scope of the search is a “.. . reasonable prospect of securing evidence . . .”. See R. v. Caslake, supra, at para 21. The police “. . . must be in a position to assess thecircumstances of the case so as to determine whether a search meets the underlying objectives . . .” of the SITA. See Cloutier v.Langlois, supra, at paras. 60-62. [Emphasis added] [50] After referring to the importance of the right to privacy, R. v. Dyment, (SCC), 45 C.C.C. (3d) 244 (S.C.C.) andR. v.

Plant, (SCC), [1993] 3 S.C.R. 281, Justice Trafford stated: 57 It is the range of privacy interests that may be implicated by the information on the cell phone that leads me to conclude the valuesunderlying s. 8 of the Charter are best cared for by limiting the power to SITA and to seize a cell phone to a power to seize it, wherethere is a reasonable basis to believe it may contain evidence of the crime, for the purpose of preserving its evidentiary value, pending asearch of its content under a search warrant. ... [51] The approach suggested in Polius has been followed in Ontario decisions such as R. v.

Little, (ON SC),[2009] O.J. No. 3278, R. v. Finnikin, [2009] O.J. No. 6016, and R. v. D’Annunzio, [2010] O.J. No. 4333. [52] In Manley, the Crown asked the Ontario Court of Appeal to hold that Polius was wrongly decided and the police were entitledto conduct warrantless searches of cell phones seized incident to a lawful arrest. There the police seized a cell phone from the appellantwhen he was arrested for offences related to two robberies. They had information that he had stolen cell phones in the past.

When theyexamined its contents, they found a photograph of the appellant with a sawed-off shot gun taken the day after one of the robberies. Thetrial judge found that the officer who opened the phone did so to determine its owner and that ownership was relevant to the charges. [53] Sharpe J.A., writing for the Court of Appeal, concluded at ¶ 37 and 38 that the police had a lawful basis for conducting acursory search of the cell phone to see if it had been stolen, and upheld that search which led to the photograph as lawful.

Havingdisposed of the merits of the appeal, he made these obiter dicta comments regarding the decision in Polius: [39] In the light of my conclusion with respect to the Crown's first submission, it is not necessary for me to deal with the second.Accordingly, it is neither necessary nor desirable to attempt to provide a comprehensive definition of the powers of the police to searchthe stored data in cell phones seized upon arrest.

However, I would observe it is apparent that the traditional rules defining the powers ofthe police to conduct a search incident to arrest have to be interpreted and applied in a manner that takes into account the facts of moderntechnology. While I would not apply Polius in the particular circumstances of this case, I am far from persuaded that Polius was wronglydecided or that it ought to be overruled.

Cell phones and other similar handheld communication devices in common use have the capacityto store vast amounts of highly sensitive personal, private and confidential information - all manner of private voice, text and e-mailcommunications, detailed personal contact lists, agendas, diaries and personal photographs. An open-ended power to search without awarrant all the stored data in any cell phone found in the possession of any arrested person clearly raises the spectre of a serious andsignificant invasion of the Charter-protected privacy interests of arrested persons.

If the police have reasonable grounds to believe thatthe search of a cell phone seized upon arrest would yield evidence of the offence, the prudent course is for them to obtain a warrantauthorizing the search. [54] All of the cases to which I have referred, except Cater from the Nova Scotia Provincial Court which followed Giles and notPolius, had been rendered before the 2011 voir dire decision under appeal. Early this year, the Ontario Court of Appeal was asked, inFearon, to carve out a cell phone exception to the common law doctrine of search incident to arrest.

There the police arrested theappellant for robbery and, in the course of a pat down search, found a cell phone. On it, they discovered incriminating material. Theymade additional checks of the phone during the night and next morning as their investigation proceeded. The device was an “ordinary”one with the functions of cell phone operation, text messaging, photographs and contact lists. It was “on” when seized, and there was noevidence that it was password protected or otherwise “locked” to users other than the appellant. The appellant conceded that his arrestwas lawful.

The trial judge held that the police reasonably believed that an examination of the cell phone contents would yield relevantevidence, and there had been no breach of s. 8. She admitted the photographs of a gun and cash, and a text message obtained from thecell phone. [55] On appeal, much of the argument focused on whether Polius had been correctly decided. The appellant and the CriminalLawyers’ Association of Ontario argued that the reasoning in Polius should apply. They took the position that, except in exigent

circumstances, a warrantless search of the content of a cell phone incident to arrest, except for a cursory examination to see if it contains evidence of the alleged crime, is prohibited by s. 8 of the Charter . The second intervenor in support of the appellant, The Canadian Civil Liberties Association, submitted that not even a cursory examination was permitted. [ 56 ] Armstrong J.A., writing for the Court, upheld the trial judge ’ s conclusion that the initial search - a cursory look through the contents of the cell phone - was a proper search incident to arrest.

As to the subsequent examinations, while his view was that the police should have first obtained a search warrant, he deferred to the trial judge ’ s factual findings on the connection between the search and arrest and her conclusion on s. 8: [58] The subsequent examinations of the contents of the cell phone at the police station are more difficult to analyze. Arguably, those examinations went beyond the limits for a search incident to arrest. See Caslake , at para. 25 .

In my view, the proper course for the police was to stop the examination of the contents of the cell phone when they took the appellant to the police station and then proceed to obtain a search warrant . Detective Abdel-Malik agreed that there was no urgency to search through the cell phone. There is no evidence that it would have been impracticable to appear before a justice to obtain a search warrant in the usual manner. If it was impracticable for an officer to appear before a justice to obtain a search warrant, the police could have proceeded to obtain a telewarrant under s. 487.1 of the Criminal Code .

That said, the trial judge concluded that the examination of the contents of the cell phone at the police station were connected to the search at the scene of the arrest . Although some time and distance had passed from the arrest, the trial judge found that the police were still looking for evidence of the location of the jewellery and the gun as well as for contacts among the parties to the offences. These were findings of fact made by the trial judge.

While I would have come to a different conclusion, I cannot say that these factual findings reflect palpable and overriding error . [Emphasis added] [ 57 ] Justice Armstrong determined that Polius was distinguishable on its facts from the case before it ( ¶ 70-71) .

He was of the view that it was difficult to generalize and create a cell phone exception to search incident to arrest on those facts and, as the Ontario Court of Appeal had done in Manley , declined to do so ( ¶ 72 and 76). [ 58 ] In his decision, Justice Armstrong made several statements on the impact of the fact that the cell phone was not password protected or locked against access by other users. I will comment on these later in my decision. [ 59 ] In the result, the decisions of the Ontario Court of Appeal in Manley and Fearon neither approved - nor rejected - the approach in Polius .

When the judge here gave his voir dire decision, there were two main lines of authority: one based on the British Columbia decision in Giles which upheld a full search of cell phone contents without a warrant, and one based on the obiter dicta in the Ontario decision in Polius which supported only a cursory search before a full search, if warranted. There were no decisions of any Canadian appellate court of persuasive authority. The Decision Under Appeal [ 60 ] I turn then to the decision under appeal. Judge Tufts wrote thoughtful and detailed reasons.

He addressed the power to search incident to arrest, the requisite justification, and its scope. With respect to the expectation of privacy, he stated: [39] The Crown acknowledges that the accused had a reasonable expectation of privacy in the contents of his cellphone and that the three occasions when the police examined and retrieved information from the cellphone constituted a warrantless search which constituted a prima facie unreasonable search for the purposes of s. 8 of the Charter.

Having said that, in my opinion it is important to characterize the degree or level of privacy in the smart phone information and how that information is stored because, in my opinion, it is a factor in deciding the scope of the police authority to search a cellphone incident to arrest. [ 61 ] The judge then described Mr. Hiscoe ’ s cell phone as a “ regular smart phone, a Blackberry sort of phone ” and observed that such phones could store dozens of gigabytes of data not unlike personal or home computers, for which there is a high level of privacy.

After quoting the passage from Morelli on the intensive, extensive and invasive nature of a search of a personal computer and how computers often contain our most intimate correspondence, the judge continued: [42] Other case authorities are consistent in their conclusions that smartphone devices have the capacity to store vast amounts of

sensitive and personal and private information including emails, text messages, contact lists, diaries, medical information and personal photographs as well as internet browsing histories. [43] Given the advances in technology, these types of devices allow individuals to carry their entire personal information library with them. In my opinion, it is difficult to compare a smartphone with a notebook or briefcase one might carry or have for a specific purpose.

Smartphones have several gigabytes of data storage which can store literally thousands of documents, photographs, messages or hundreds of thousands of filed data. This, of course, does not take into account current technological advances regarding Cloud storage and electronic and computer device sharing features which could increase the information available from a hand-held electronic device. [44] While the accused did not testify as to the level of privacy - the Crown has admitted the accused had a reasonable expectation of privacy in the cell phone. I agree with the conclusion reached by Fuerst, J in R. v.

Little , supra , at para. 120 , that the subjective expectation of privacy can be presumed. This subjective expectation of privacy is objectively reasonable for the reasons I expressed above. Furthermore, the high level of privacy which I described can be inferred as well. In my opinion this privacy level exists irrespective of whether the phone is password protected.

The lack of a password is not an invitation to view the personal contents contained in the device especially from the prying eyes of the state. [45] Finally, I would add that like other computers, cellphones are organized in a way that separates voice messages, text messages, documents, photographs, browser history and other information. The information is not stored in one big container to use perhaps a poor analogy. It is possible to look at text messages without looking at photographs, for example.

It is not necessary to examine ones (sic) voice memos to read text messages or documents. [ 62 ] The judge proceeded to review the case law on searches of cell phones upon arrest, including Giles , Polius and Manley as well as American case law. He correctly identified Justice Lamer ’ s judgment in Caslake as the binding authority on search incident to arrest, and focused on its requirement for some “ reasonable prospect of securing evidence of the offence for which the accused is arrested ” and its reference to “ discovering ” rather than “ searching for ” evidence.

The judge also emphasized the overarching Charter values set out in Hunter and the purpose of s. 8, namely to protect against unreasonable searches and seizures, and to prevent unwarranted intrusion into or interference with a person ’ s privacy. Finally, he noted that the power to search incident to arrest is a discretionary one. [ 63 ] With respect to the download of all the content on the cell phone, the judge reasoned: [83] As the Crown has recognized, the full content download or "data dump" presents a much more challenging analysis.

The difficulty with the jurisprudence in this area of the law is that devices which contain such vast amounts of personal information were never contemplated, even a decade ago, to be carried on individuals. Accordingly, as the court has recognized in R. v. Manley , supra the law needs to be interpreted having in mind this modern technological phenomenon. [84] Here the Crown argues that it is reasonable to search the accused's cell phone because, as Constable Foley testified, it is not uncommon for drug traffickers to use their cell phones to do "their business". Crown counsel Mr.

MacKay, in his oral submission, makes a very compelling argument that drug trafficking cases should be distinguished from other cases where the crime alleged is a single event. After all, trafficking is an ongoing offence and it is reasonable to conclude that evidence of drug activities would be present throughout — in this case on the accused's smart phone. [85] The reason stated by the police for performing the data dump was to secure evidence of the offence for which the accused was arrested. This appears at first blush to satisfy the requirements set out in Cloutier v. Langlois and R. v. Caslake .

However, in my opinion, this goes too far and is beyond the scope of a search incident to arrest. I have concluded this for the reasons which follow. [86] First of all, the full data retrieval was performed almost a month after the arrest . While the jurisprudence is not that helpful in understanding the effect of the temporal issue, clearly the longer the period from the arrest to the search the greater the inference is that the search was not sufficiently connected or incidental to arrest. The month delay significantly reduces any connection with the arrest . [87] Secondly, I agree with Blair, J.A. in R. v.

Jones, supra that the analogy to analyzing seized items such as a bloody shirt is not an apt one . I agree with his conclusions, "unlike a physical object, it is not information generated by the physical characteristics of it or adhering to the object that is the target of the search. It is the informational components of the computers themselves that are the target of the search. This is a qualitative difference ".

[88] Finally, and in my opinion most importantly, the full download search is simply too broad in its scope. I described the heightened expectation of privacy in cell phones above. While a smart phone or computer search does not raise the same “human dignity ” issues that were referred to in Golden or Stillman , it does raise equally heightened privacy issues. After all in Morelli Justice Fish found it difficult to image a greater degree of privacy. Accordingly, in my view, the "needs" of law enforcement must be correspondingly greater when the privacy interests are heightened .

Like Golden and Stillman the scope of search incident to arrest for a search of a smart phone should be constrained. [89] Further, the prospects of discovering evidence are not the same for every separate informational location housed in the smart phone. It is not a single container. Here there was no attempt to tailor the search to locations where the prospects of locating evidence was reasonable. There must be a reasonable prospect of discovering evidence. That requirement, in my opinion, applies to every separate location which the cell phone contains .

This cannot be achieved in a “data-dump”. [90] As explained in R. v. Little , the Criminal Code treats computers "as stand-alone search locations warranting special rules". [91] Here the police made no effort to minimize or focus the search. Instead, the full contents of the phone was downloaded and retrieved by the police. They were searching in furtherance of their investigation, not, in my opinion, as incident to the arrest . [92] I agree with the conclusions reached by Justice Trafford in R. v.

Polius , albeit as obiter dicta , where he held that the police should not be able to search beyond a cursory review of the cellphone contents without a search warrant. Here the privacy interests of the accused outweigh the "needs" of the police. The police did not "need" to search this broadly. If the police wanted to examine the full contents of the accused's cell phone they ought to have obtained a search warrant. Requiring a warrant does not in way restrict the police in fulfilling their obligation to collect and gather evidence against the accused to prove his guilt.

It simply requires them to satisfy an independent and impartial arbitrator that their desire to examine a device that contains potentially very private and personal information is justified albeit to a greater degree than would be required if they were searching incident to arrest.

But that is what Justice Dickson found would be an effective way to protect privacy and prevent unreasonable interferences with it, which is the purpose of s.8 of the Charter . [Emphasis in original] [93] The accused's s. 8 rights were violated. [Emphasis added] [ 64 ] The judge then proceeded with an analysis of s. 24(2) of the Charter as set out in R. v. Grant , 2009 SCC 32 and R. v. Harrison , 2009 SCC 34 . He was satisfied on the balance of probabilities that the long-term repute of the administration of justice was better maintained by the exclusion of the data dump material.

He granted the respondent ’ s application to exclude the full content download of the contents of the smartphone, excluding the messages retrieved by Constables Foley and Campbell within the lawful authority of the police. [ 65 ] The Crown takes issue with several of the judge ’ s reasons for finding that the data dump of the cell phone ’ s contents was beyond the scope of search incident to arrest.

With respect to the almost month long delay before the cell phone was examined forensically, the Crown points out that the BlackBerry in Giles was sent for analysis seven weeks after the arrest, yet the British Columbia Supreme Court stated that the search occurred within “ a reasonable time after the arrest in the circumstances ” ( Giles , ¶ 57). [ 66 ] In my view, the judge ’ s analysis regarding the timing of that search accords with Caslake .

There, with respect to the temporal limits on search incident to arrest, Chief Justice Lamer declined to set firm limits but rather permitted trial judges to draw a negative inference in cases of substantial delay: 24 ... There is no need to set a firm deadline on the amount of time that may elapse before the search can no longer said to be incidental to arrest. As a general rule, searches that are truly incidental to arrest will usually occur within a reasonable period of time after the arrest.

A substantial delay does not mean that the search is automatically unlawful, but it may cause the court to draw an inference that the search is not sufficiently connected to the arrest. Naturally, the strength of the inference will depend on the length of the delay, and can be defeated by a reasonable explanation for the delay. The period between arrest and search is a legitimate factor for consideration in deciding whether a search incident to arrest is lawful.

Although the temporal separation is a rebuttable presumption, at trial the Crown presented no evidence whatsoever explaining the delayin examining the cell phone further. The trial judge found that almost a month amounted to a substantial delay. In the circumstances, Icannot say that the trial judge erred in holding that this significantly eroded any connection with the arrest. [67] With respect to the judge’s determination at ¶ 88 of his decision that the full content search was too broad in its scope, theCrown argues that the judge erred by inferring a heightened expectation of privacy.

While smartphones are sometimes compared tocomputers, the Crown submits that the analogy should be drawn with care. It emphasizes that, unlike the personal computer in Morelli,the respondent was not using his cell phone in the privacy of his home. Rather, cell phones are designed to be used on the go and inpublic; they are mobile by nature. According to the Crown, a passerby looking over a person’s shoulder could read a message on thatperson’s cell phone and, unlike landline telephones, cell phones can be misplaced or lost in a public place.

This, the Crown says,obviates any expectation of privacy higher than the usual reasonable expectation. In its factum, the Crown elaborated: 73. The privacy interest in a piece of property has never been a basis to exclude it from the scope of search incident to arrest; otherprivate items have been searched on that basis. For example, briefcases may be searched incident to arrest despite the fact that they “canserve, in a practical sense, as portable offices for their owners”.

Similarly, Canadian courts have confirmed that purses and wallets,sealed envelopes, cameras, address books and scrapbooks can all fall under the proper ambit of search incident to arrest. In those cases,the nature of the information searched is comparable to the contents of a smartphone.

There is no reason in principle why a photographof the respondent kissing his girlfriend should be treated any differently if it had been found in his wallet instead of on his smartphone. [68] The last sentence in this quotation refers to the problem of over seizure, which was integral to the judge’s concerns pertaining tothe extent of a full download search. In extracting and examining all the contents of a cell phone in order to analyse what is forensicallyimportant for its purposes, the police may well access more, and sometimes much more, information about an accused than it needs orindeed wants.

The Crown readily acknowledges that with data dumps over seizure is a problem; however, it says that this is simplyunavoidable. It agrees that a search warrant could define or compartmentalize the material to be accessed by the crime lab, but resiststhat suggestion.

The Crown’s position is that when the police have a reasonable basis for examining its contents, a search of an item istruly incident to the arrest and a warrant is simply not needed; that is, just because the police could obtain a warrant doesn’t mean theyhave to get one. [69] My response to the Crown’s arguments rests on the foundational principles in regard to s. 8 of the Charter. Quite simply, anindividual is entitled to Charter protection against unjustified state intrusions upon his or her right to privacy. Warrantless searches areprima facie unreasonable and contrary to s. 8.

While searches incident to arrest are an exception, their use is subject to limitations. Given the purpose of s. 8, namely protection against state intrusion upon the right to privacy, it is critical that as much as possibleunjustified searches be precluded from occurring in the first place. Allowing such infringements to the right to privacy to proceed anddetermining afterward whether or not they were proper is most unsatisfactory. After all, the privacy of the individual cannot be fullyrestored.

Furthermore, the Crown’s case and judicial resources may be adversely impacted. [70] The rapid advance of technology, the ever-quickening pace of change, and unimagined improvements and capabilities willcontinue and raise new issues on the risk to privacy in this digital age. This was recognized in, among others, the passages from thecomputer and cell phone decisions in Morelli, Manley and the decision under appeal that I quoted earlier. [71] The reality of technological advancements was also commented upon in R. v.

TELUS Communications Co., 2013 SCC 16where the police had obtained a general warrant pursuant to certain provisions of the Criminal Code to authorize the prospectiveproduction of future text messages from a service provider’s computer database. In interpreting the meaning of the word “intercept” inthat part of the Code, Abella J. writing for the majority observed at ¶ 33 that the rights enshrined in s. 8 of the Charter “must remainaligned with technological developments.” She continued: . . . In R. v.

Wong, (SCC), [1990] 3 S.C.R. 36, this Court found that “the broad and general right to be secure fromunreasonable search and seizure guaranteed by s. 8 [of the Charter] is meant to keep pace with technological development, and,accordingly, to ensure that we are ever protected against unauthorized intrusions upon our privacy by the agents of the state, whatevertechnical form the means of invasion may take” (p. 44). A technical approach to “intercept” would essentially render

Part VI irrelevantto the protection of the right to privacy in new, electronic and text-based communications technologies, which generate and store copiesof private communications as part of the transmission process. [72] The Supreme Court of Canada has emphasized many times the need to strike the appropriate balance between the privacyinterests of the accused and the challenges and realities of law enforcement. See, for example, R. v. Araujo, 2000 SCC 65. In doing so,the analysis must be informed by the values underlying s. 8 of the Charter. After identifying these as dignity, integrity and autonomy in

Plant , Sopinka, J. elaborated as follows: ... In fostering the underlying values of dignity, integrity and autonomy, it is fitting that s. 8 of the Charter should seek to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state.

This would include information which tends to reveal intimate details of the lifestyle and personal choices of the individual. ... [ 73 ] As Lamer C.J., stated in Caslake at ¶ 15, there are no clear limits on the power to search incident to arrest so it is “ the courts ’ responsibility to set boundaries which allow the state to pursue its legitimate interests, while vigorously protecting individuals ’ right to privacy. ” In my view, after balancing an individual ’ s right to privacy against the demands of law enforcement, the trial judge was correct in law to find that the respondent ’ s rights under s. 8 were violated by reason of the full content download of the respondent ’ s smartphone. [ 74 ] The Crown had the burden of demonstrating that this search was justified, yet provided no explanation for the delay in performing the data dump.

The reason given by the police for that subsequent forensic search was simply the enabling of “ easy reference ” by the Crown and defence counsel, despite the fact that the messages from the cursory searches had already been transcribed. Officers testified that they had not directed their minds to s. 8 Charter rights. There was also evidence that drug traffickers use “ clean ” phones for personal use so a device seized at a drug arrest might not even be associated with any criminal offence. [ 75 ] The judge was right to identify the informational component of the smartphone as the subject matter of the search.

In view of the variety and breadth of personal information on cell phones, there was support for his statements that they are not comparable to notebooks or briefcases. Such items, and others like the briefcases, purses and wallets, address books and locked boxes described by the Crown and the diaries and logbooks described in Giles , do not contain the extent or the multiple types of information, including histories of searches, now regularly found on cell phones. Moreover, these devices are not simply inanimate objects; they are a means of communication.

The right to privacy includes privacy against misuse or receipt of private communication without private authorization. [ 76 ] Against this backdrop, I would not interfere with the judge ’ s inferences regarding heightened expectations in privacy in such sophisticated technological devices which can contain, as he put it, an individual ’ s “ entire personal information library. ” Where the state is cognizant that there may be the “ most intimate ” material ( see Morelli at ¶ 105) or information going towards the “ biographical core ” of an individual ( see Plant at p. 293), great care should be taken to avoid any transgression of Charter -protected privacy rights. [ 77 ] It is readily apparent from the judge ’ s decision, particularly in ¶ 84, that he appreciated the importance not to unduly affect the law enforcement work on which all Canadians rely for their personal safety.

However, as well as the factors I have already described, he was also aware of the compartmentalization of information on a cell phone and the problems of over seizure. In this case, for example, the full content download included over a dozen intercepted messages that had come to the cell phone after it was seized. Yet, although the police testified that there were no exigent circumstances which called for a warrantless search, no warrant was sought. [ 78 ] The judge pointed out that the police made no effort to minimize or focus the search; they simply retrieved the full contents of the smartphone.

He found that they were searching not incident to arrest which is permissible, but in furtherance of their investigation which is not. I see no palpable and overriding error in this finding of fact or inference from his findings of fact. Disposition [ 79 ] In my opinion, the trial judge in his voir dire decision committed no error of law in finding that the full content download of the respondent ’ s cell phone by the police who had not obtained a warrant, infringed s. 8 of the Charter which guarantees everyone the right to be secure against unreasonable search or seizure. I would dismiss the appeal.

Addendum: Passwords and Protection Features [ 80 ] Before leaving this decision, I would like to comment on the passwords, locks, and other such protection features on cell phones. Here the judge did not consider the passwords relevant to his analysis of search incident to arrest, and the Crown on appeal was of the same view. I observe however that after disposing of the appeal in Fearon , Justice Armstrong commented:

73 In this case, it is significant that the cell phone was apparently not password protected or otherwise “locked” to users other than the appellant when it was seized. Furthermore, the police had a reasonable belief that it would contain relevant evidence. The police, in my view, were within the limits of Caslake to examine the contents of the cell phone in a cursory fashion to ascertain if it contained evidence relevant to the alleged crime. If a cursory examination did not reveal any such evidence, then at that point the search incident to arrest should have ceased. 74 . . .

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”.

Rather, because the phone was not password protected, the photos and the text message were readily available to other users. 75 If the cell phone had been password protected or otherwise “locked” to users other than the appellant, it would not have been appropriate to take steps to open the cell phone and examine its contents without first obtaining a search warrant. [ 81 ] With great respect, I am not persuaded that the password protection is as significant a factor as Justice Armstrong states.

It appears from his ¶ 75 that whether or not such a security feature was on when the police want to examine a cell phone could be conclusive as to whether a search warrant will be required. While the presence or absence of a password or lock may be another relevant factor in determining whether a search incident to arrest is lawful or within its proper parameters, in my view it should not be determinative. Whether such a security feature exists or is turned on is not substantively helpful in determining the privacy interests of the accused in the contents of his cell phone, nor the propriety of a police search.

Just because a password is not on at the very moment the police seize a cell phone cannot mean that the state is welcome and free to roam through its contents. Oland, J.A. Concurred in: Hamilton, J.A. Beveridge, J.A.