The Ontario Court of Appeal has ruled that police can look through the cellphone of an arrested person only if there is no password on that phone. However, police officers must get a warrant to search password protected cellphones.
The ruling came after an appeal of an armed robbery convict, Kevin Fearon, who argued his rights against unreasonable search of his phone by investigative officers. On Wednesday, Justice Robert Armstrong, along with two other judges, has dismissed his appeal, The Star reported
The suspect, Fearon, was arrested after a jewellery theft at Downsview, Toronto July 2009. Later the police found some pictures of a gun, cash and several text messages related to the jewellery theft in his phone.
The Court of Appeal denied his appeal, declaring that police is permitted to search Fearon's mobile phone "in a cursory fashion" to examine if the device contains any evidence related to the crime.
"While I appreciate the highly personal and sensitive nature of the contents of a cellphone 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," Justice Robert Armstrong wrote.
Additionally, the Court of Appeal clarified: "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."
The case has created must curiosity in the legal community, many associations have argued against the ruling made by the Court of Appeal.
The Canadian Civil Liberties Association has argued that mobile phones should not be examined after an arrest, except in urgent circumstances.
"Text messaging is basically the equivalent of a modern wire tap. The court really understated the expectation of privacy that Canadians have in their cellphones," Susan Chapman argued on behalf of The Criminal Lawyers' Association, the Star reported.
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