News Local

Smartphone searches under scrutiny in court

By David P. Ball, 24 hours Vancouver

(QMI Agency file photo)

(QMI Agency file photo)

The BC Civil Liberties Association is intervening in a legal appeal Monday over whether police can lawfully search through a suspect’s smartphone without a warrant.

As the Supreme Court of Canada weighs in on a similar constitutional challenge in Ontario, the B.C. Court of Appeal is reviewing whether police had the right to hack into two Blackberry phones belonging Rajan Mann, who was twice arrested in connection with a June 2006 kidnapping in Richmond.

Now, Mann is appealing a B.C. Supreme Court ruling that police were justified in searching his encrypted phones because they believe they tied him to the kidnapping. He argued that his charter rights were violated because police failed to obtain search warrants.

The BCCLA said it's not disputing Mann's arrest, but will address the issue of protecting citizens’ privacy rights in an era of new technologies, when smartphone users can access the Internet and store vast amounts of personal information.

“When police arrest or detain someone, they do not have an automatic right to search your cellphone,” said Hunter Litigation Chambers lawyer Brent Olthuis, representing the organization in court. “Phones can have intensively personal information on them, our intention is to protect the privacy of all citizens and ensure nobody who is stopped has all their information rifled through.”

BCCLA spokeswoman Raji Mangat said police already can apply for expedited search warrants by phone under “exigent circumstances,” but that Mann's case could “greatly expand warrantless police search powers.

“We want the court to recognize what is truly happening,” she said. “This can't become a fishing expedition.”

Criminal Justice Branch spokesman Neil MacKenzie declined to comment because “the matter is just about to be argued before the court.”

But in his August 2012 ruling in the case, B.C. Supreme Court Justice Lance Bernard agreed with Crown prosecutors that both phones were seized in “lawful searches incidental to lawful arrests and that, thereafter, search warrants were not required to search their contents.”

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