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Appeal dismissed in cell phone search case

If it’s not password protected, a cell phone can be searched without a warrant upon arrest, the Ontario Court of Appeal has ruled in a decision that Toronto criminal lawyer Sam Goldstein says has wide implications for future search and seizure of the devices. Read Toronto Star

“If you want to protect yourself from police snooping into your cell phone, make sure it’s password protected,” says Goldstein.

In a judgment released Wednesday, Justice Robert Armstrong dismissed an appeal from appellant Kevin Fearon, who was charged with various counts of weapons offences after he was seen associating with a suspect in an armed jewelry robbery in December 2010.  Read R. v. Kevin FearonRead Prior Story

When Fearon was stopped and searched by police, his cell phone was examined for evidence, says Goldstein, who is representing Fearon.

In his appeal, Fearon challenged the warrantless search of the cell phone, contending having its contents lead to an arrest is prohibited by s. 8 of the Charter of Rights and Freedoms.

“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,” Armstrong writes in the judgment.

"While I appreciate the highly personal and sensitive nature of the contents of a cell phone and the high expectation of privacy that they may attract, I am of the view that it is difficult to generalize and create an exception based on the facts of this case," the decision reads. "The facts of this case, with the correct application of the existing law, suggest that the search and seizure of the cell phone at the scene of the arrest were carried out appropriately and within the limits of the law articulated by the Supreme Court in Caslake."

Read Globe and Mail

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