By Canadian Security
I am often asked whether images obtained from “smart phones” (e.g., Blackberrys, PalmOne Treos) are admissible in Canadian courts? The answer is, “it depends.” While you might consider this a typical lawyer’s answer, the reality is that the answer really does depend on many factors, including the circumstances surrounding the seizure of the images, their relevance to the case before the court, and their probative value.
By Canadian Security
For example, in the 2009 Ontario case of R. vs. Little, 1 the police seized a PalmOne Treo cellphone from the crime scene during a warranted search of the accused’s home. The accused had deposited the business cellphone on the bed when paramedics and others arrived to attend to his wife, who was found in the master bedroom bleeding from a cut throat. She later died of her injury and the accused was charged with her murder and that of another woman, who was found hanging in the accused’s garage.
From the Treo the police seized images (and other information) linking the accused to the crime and sought to tender those images in evidence. The defence objected on the ground that the police had failed to obtain a warrant to search the contents of the Treo.
The Ontario Superior Court of Justice ruled that the accused had a reasonable expectation of privacy in the Treo and the information stored in it because “for practical purposes the Treo was his. The employer did not have the voicemail password for the Treo, and there is no evidence that anyone other than Mr. Little (the accused) used the cellphone, or had possession of it. The employer allowed Mr. Little to use the phone for personal calls. The employer never checked whether employees kept personal data on their cellphones. It is a reasonable inference that the employer tolerated the use of the Treo for personal purposes, including text messaging and the taking of photographs. There is no evidence that he ever accessed or tried to access the information stored in Mr. Little’s cellphone. There is no evidence that Mr. Little ever shared the stored information with any third party. The technology used by the police to search the Treo did not involve force, but it allowed them access to all of the information stored in the device. The information exposed some intimate details of Mr. Little’s life, most particularly text messages to and from his estranged wife. In this sense the search involved a more rather than less intrusive technique.” 2
The court then considered the issue of whether the search of the Treo was authorized by law, and whether it was carried out in a reasonable manner. The court concluded that the search of the contents of the Treo violated Mr. Little’s s. 8 rights. 3
The court found that “[T]he Treo was seized because it had blood on it and to confirm its telephone number. It was not necessary for the police to search the entire contents of the Treo in order to examine and analyze blood deposited on the exterior of the device. Similarly, the police could have obtained the telephone number for the Treo simply by turning it on. It was not necessary for that purpose to search the entire contents of the device. Further, to suggest that once the police had lawful possession of the Treo they could examine its entire contents without obtaining a warrant authorizing its search is to ignore the nature of the item. It was not simply a cellular telephone, but rather a personal electronic storage device. It was capable of storing data such as call logs, text messages, photographs and movies, any or all of which could include highly personal information. Its contents were not immediately visible to the eye, but had to be extracted by a police officer with specialized skills using specialized equipment. In this way, it was different from a notebook, briefcase or purse. Det. Cnst. Downey acknowledged that the Treo functioned as a mini-computer.” 4
The Superior Court of Justice ruled that “if the police wished to examine the information stored in the Treo, they should have applied for a warrant authorizing the search of its contents. The Treo was safely in their possession. There was no urgency to search its contents, nor were there other circumstances that made it impracticable to obtain judicial authorization for the search. The police search of the contents of the Treo violated Mr. Little’s s. 8 rights.” 5
Having found that the police violated Mr. Little’s s. 8 charter rights by searches of the contents of a Treo cellphone, (and materials on his workplace desk top, and the contents of the workplace computer he used), the court then ruled on the defence motion to exclude the evidence under s. 24(2) of the charter, on the ground that its admission would bring the administration of justice into disrepute.
In deciding this motion the court considered the following:
(a) The seriousness of the charter-infringing state conduct;
(b) The Impact of the breach on the charter-protected interests of (the accused); and,
(c) Society’s interest in the adjudication of the case on its merits.
The court concluded that “[T]he seriousness of the police conduct falls at the lower end of the spectrum of misconduct. The impact of the breach on Mr. Little’s s. 8 interests was more than minimal, but not severe. The evidence is of such value to the crown’s case that the vindication of the s. 8 violation through the exclusion of the evidence would extract too great a toll on the truth-seeking goal of the trial. On balance, the admission of the photographs obtained by the s. 8 breach would not bring the administration of justice into disrepute.” 6
This case involved the police seizing a business cellphone and downloading its contents without a specific warrant to do so. Its application to the private sector may, therefore, be limited. However, the trial judge’s finding that the accused had a reasonable expectation of privacy in the personal information that he stored on the smart phone, apparently without objection from his employer, is noteworthy.
Employers should clearly communicate to their employees whether business cellphones may be used for making personal calls and storing personal information.
Elliott Goldstein, B.A., LL.B. is a Woodbridge, Ont.-based lawyer. firstname.lastname@example.org
1 2009 CarswellOnt 8024 (Ont. S.C.J. per Fuerst, J.)
2 See above. All quotes are taken from this case.
3 I.e., the right to protection against unreasonable search or seizure.