Supreme Court Gets it Right … Maybe

Ten years ago, I would have seen the latest decision regarding cell phone searches as a disaster: an invasion of privacy that violates our Charter rights and gives police too broad powers.

But times have changed.

The sad …and scary … truth is there are people in our midst right now who want to kill us …any of us, almost all of us … if they could in some twisted jihadist attempt to destroy Canada’s democracy, our diversity, our social policies, even our freedoms.

There are criminals, high-tech organized gangs who now use … not guns … but cell phones, I-pads and computers in such sophisticated large-scale attacks against our bank accounts, credit cards, personal data and even family information and connections to rip off not only our assets and belongings but even our identities.

Ask anyone who has had their personal data hacked and their identity high jacked what turmoil it has caused them …sometimes taking years to recover from …  and you will understand the reality our society is up against.

These really are more terrible and potentially frightening times than any of us have ever PERSONALLY faced before.

We are at war …. in quite a different fashion from actual physical wars of the past: the enemy today is right here, in person,  or right here from thousands of miles away, via the Internet.

In the face of all this, the decision, by the Supreme Court, is really quite limited: police will be able to search, without warrant,  the content of people’s cell phones …but ONLY IF they have been arrested on a particular charge.  And the ONLY INFORMATION they can gather MUST be related to those charges.

In other words, the police will NOT be able to just stop anyone in the street and, on suspicion or just a hunch, demand a look or search of anyone’s cell phone.

And when ANY cell phone search is done, in relation to any arrest, the police must keep detailed records of what was examined and why.  ANY failure to properly do so would work AGAINST the police, ruling out the use of any information thus gathered.

In other words…and quite clearly … the Supreme Court has given police a new weapon to use against CRIMINALS … and only AFTER THEY ARE ARRESTED … not just to harass teens, members of the public, protestors or … God forbid … troublesome bloggers!

The closeness of the Court vote … 4 to 3 … certainly points to the dangers or fears about abuses of our Charter rights.

I think that’s good.   The decision does NOT give the cops carte blanche … and the dissenting opinion warns against opening the door to George Orwell’s Big Brother controls … if no warrant is required.

But warrants take time, can be challenged and delayed … and, frankly, in today’s high-speed technological criminal world, would yield more than enough time through other phones or computers to clear info,  destroy evidence … and even for accomplices or big bosses (or fellow jihadi terrorists) to escape.

The danger, as always, is that SOME police officers or even agencies will abuse the right …and will try to examine cells BEFORE a person is arrested, or even after an arrest,  look for info totally unrelated to the charge involved.  I do worry about that, but I am convinced if there are abuses of the new Court ruling, that can be dealt with … in future Court rulings.

However in the face of the ugly evils that now pervade our society and the world, and use cellphones to wreak havoc on the REAL WORLD in which we live today, it’s the criminals and jihadists we must handcuff … not the police …unless they betray the new trust.

Harv Oberfeld

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22 Responses to Supreme Court Gets it Right … Maybe

  1. 13 says:

    Harvey, the only clarity that I can see are the bad guys on one side and the cops and judges on the other. The ruling will give bad guys with good lawyers an escape route almost any time the police take possesion of a cell phone. A criminal with a bit of IQ would do well to plant useless info on their cell that will entrap the police and give them cause to toss out legitimate charges.
    Hopefully the police will develope systems to search cell phones. Look at how long the police kept the cell phone of the civilian that took the video of Dziekanskis homicide at YVR.
    Its complicated problem .
    ps great subject matter even though it isnt bashing BC Libs.

    (Response; I’m sure someone will find a way to blame the Libs, the NDP …or Enbridge! And some of those who comment on here have such great info and skills, we may even conclude they have a point!:) h.o)

  2. DBW says:

    After an article in which you complain about a change (not pledging allegiance) you argue in this article “times have changed”. But I digress.

    For the most part our supreme court has usually found a balance that can be acceptable to most of us. I trust them more than I trust our lawmakers. But, like you, I will reserve my opinion with a maybe.

    What I don’t want us doing though is giving up our freedoms because we are afraid of losing our freedoms to some group that may be attacking us.

    This case came about because of a robbery and the police searched the phone and found a text that incriminated the criminal. Dumb criminal.

    It’s in the details and future cases that will determine how this ruling will apply. In a robbery case what possible reason would there be for searching the phone. And how does self incrimination apply in a case of typing a dumb text? And what of phones that are password protected? And how can you ignore information on a phone after a robbery that may apply to say a drug deal or a terrorist attack.

    Very complicated.

    (Response: Maybe you missed it: I’m not complaining about this change, I’m actually supporting it. As for what possible reason for searching a robbers phone , I could think of MUCH info that could yield, like the name or texts from whoever fences the stolen goods or insider who gave info about when the cash is going to be deposited etc. h.o)

  3. DeadDogHank says:


    As much as this ruling does give the police more powers to snoop into a persons cellphone a smart “criminal” or “terrorist” (I quote those because those terms are thrown around like candy in a parade) would install an app that would scrub their phone of any incriminating data. Do a quick Google search and you will find numerous apps that can do this. In fact they can do it remotely, even after the police has taken your phone.

    We live in a society where then is an expectation of privacy from government and its agencies. I believe this ruling erodes our privacy. What I see happening is as this erosion of our rights happens we will see a “1984” scenario playing out.

    (Response: I’m not tech expert, but I’ve heard that even if you delete all kinds of data, the authorities have ways to retrieve it. Also, even if people who have scrubbing apps, they likely don’t do it every day … or they get lazy about doing it …and in an arrest, would not have access to do that….not to mention that even if a hundred delete all data, there will no doubt be many who do not …and the info could prove valuable ..even save lives …so it’s worth at least trying in today’s world and criminal context. I also worry about loss of rights…but am satisfied somewhat if the power can ONLY be used AFTER someone is actually arrested and charged …not just being investigated. h.o.)

  4. Lew says:

    As you say Harvey, the closeness of the vote certainly points to the dangers or fears about abuses of our Charter rights. There are good arguments on both sides of the issue.

    Where I have a problem with this is the apparent discrepancy between how the cell phone in my pocket and the filing cabinet in my den are treated. The police cannot go into my filing cabinet and search through financial records, documents, videotapes or CDs, photos, etc. looking for evidence without a warrant. But my cell phone can contain several physical file cabinets full of the same information. The police cannot demand the phone company turn over my phone records, or that my ISP provide them with my internet wanderings without a warrant, but my cell phone contains that same information. Why is my personal information stored digitally on a cell phone less sacred than the same information stored on my home computer, physically in a file cabinet, or in a box under my bed?

    The ruling says they can only retain information related to the charge, but in order to discern whether the information the police are interested in is on any particular cell phone, they obviously will have to search the entire contents to be thorough. The ruling says they will have to keep detailed records of what was examined, and why. The detailed record describing examination of the entire content of a cell phone will greatly occupy investigating officers, and that occupation will increase with successive challenges by defence counsel. Time will tell if the resources necessary are worth it.

    (Response: You raise VERY valid points …and it causes me some concern too …but for the reasons I’ve stated about the modern dangers we face and the new technology criminals and terrorists use, I’m willing to give it a try …and monitor to see if there ARE indeed abuses. Actually, it has already been in effect at airport customs for some time: if you watch that Border Security show, customs officers quite regularly take people’s phones and scroll through them …without warrant or it seems, even asking for permission to do so. h.o)

  5. e.a.f. says:

    I still don’t like the decision. I hear what you are saying, but I don’t trust the police or politicians who employ them. They may not be able to use the information, if they obtain it “incorrectly” but it does provide them with information, they can then use. They will know what to look for and how to get it through legal means. It opens a can of worms.

    I’m not all that worried about Canadian “terrorists”. I know where most of them are. Sitting in the House of Commons and the B.C. Legislature. Those politicians cause a lot of terror for many in this country.

    Those jihadists who want to throw a few bombs around, well I’m not worried about them. As terrible at the 9/11 World Trade Centre killings were, the Americans loose more people to gun shootings, car accidents, drunk driving each and every year. In the grand scheme of things, terrorists aren’t going to be the undoing of our country. Poverty, disease, homelessness, pollution, lack of adequate food, housing, medical care have a greater chance of destroying a country.

    Good post though, its thought provoking.

    (Response: I know and sympathize with exactly how you feel. But I guess, after Air India and the Toronto 17 nuts, I DO worry about those jihadis and other terrorists still running around …and the increasing cases of identity theft and BIG crime using technology etc. more than I worry about the police abusing the right ..esp with all the civil rights, defence lawyers and legal beagles who will be watching their every move. h.o)

  6. Hawgwash says:

    So many good topics lately Harvey.

    My own life experiences can easily put me on either side of this issue and thus just confuse myself. Therefore I decided to sit this one out, for now, but a comment you made changed that.

    You said, in response to DeadDogHank in post 3: “…but am satisfied somewhat if the power can ONLY be used AFTER someone is actually arrested and charged …not just being investigated.”

    “…arrested and charged…”

    I hope you have not lulled or talked yourself into a false sense of comfort here.

    There is a big difference between being “arrested” and being “charged” and there is nothing in the ruling that makes “charging” a critical component of the search being allowed. In fact the “charge” could likely come well after the search.

    No, the warrantless search will, in most cases, take place during the investigation process.

    The term arrest is open to interpretation and in Canada: “Arrest consists of the actual seizure or touching of a person’s body with a view to his detention. The mere pronouncing of words of arrest is not an arrest, unless the person sought to be arrested submits to the process and goes with the arresting officer.”

    If you are led by the arm or go willingly to a spot where the police ask you to remain, you are under arrest.

    Here’s where you may need to take another look:

    Justice Thomas Cromwell, writing for the majority set four conditions for a warrantless search of a cellphone:

    “First, the arrest must be lawful.”

    “Second, the search must be truly incidental to the arrest. This requirement should be strictly applied to permit searches that must be done promptly upon arrest in order to effectively serve the law enforcement purposes.”

    “Third, the nature and the extent of the search must be tailored to its purpose. In practice, this will mean that only recently sent or drafted emails, texts, photos and the call log will, generally, be available, although other searches may, in some circumstances, be justified.”

    “Finally, the police must take detailed notes of what they have examined on the device and how they examined it.”

    (Response; You’re absolutely right…my error in that comment: the ruling allows searches after ARREST, not just after charges. Still I stand by my agreement to go along …cautiously…as stated in the actual blog, where I noted it was after ARREST, and did not state charged as well. Unfortunately, the world has become a lot uglier ,not better, despite all the new freedoms and improved technologies we can all work and play with …and the days where police could just tap house or business phones are long gone. They need the ability to delve into phones of those who are arrested on prima facie evidence to see if charges could be backed up with more proof …as uncomfortable as that makes my “freedom” alert system, especially in cases where some police may be far too cozy with politicians. h.o.)

  7. 13 says:

    I am amazed at the power of rationalization. The attack on New York City on Sept 11 ,2001 is comparable to domestic violence and car accidents? Hmm?
    I guess until every last soul is fed clothed and looked after we cant worry about a few airplanes flying into skyscrapers
    When it comes to search and seizure of suspected terrorists cell phones I think the police should be given more freedom to act.
    Much like the controversey over torturing terrorists. I would agree that governments not torture captured terrorists. On the other hand if their acts of terror have resulted in loss of life they should be executed.

    But thankfully my prediction has come to pass. Even a debate on the supreme court ruling on cell phones can be spun into a wee bit of BC Lib bashing.

  8. Kreditanstalt says:

    It’s shocking how, blithely and gullibly, Canadians are eager to curtail their own liberties and concede more power to authoritarian governments simply because of those governments’ campaigns of fear-mongering and propaganda.

    I’ll be sure to check under the bed tonight for “muslim terrorists”, “ISIS”, shoebombers or “cyber bullies”…whatever the bogeyman-du-jour currently is…

  9. harry lawson says:


    several great points have been raised. however i must agree with the supreme court.
    we always bitch when the laws do not keep up with technology.

    well now it does under certain circumstances. however we as citizens must be vigilant that abuses do not occur.

    in the 1930″s if a gangster was caught with a set of books or gambling slips on them they usually went to jail. today modern cell phones can carry the the same info.
    it is a slippery slope,

    remember tasers were only supposed to be used instead of guns to prevent lethal force, now they are used by some officers for convenience.

    just saying.

    (Response: I certainly agree we must remain vigilant. And I have no doubt defence lawyers of anyone arrested, as well as civil liberties orgs will do exactly that…raising hell whenever there is even a hint of abuse of the cellphone search provision. h.o)

  10. morry says:

    “There are criminals, high-tech organized gangs who now use … not guns … but cell phones, I-pads and computers in such sophisticated large-scale attacks against our bank accounts, credit cards, personal data and even family information and connections to rip off not only our assets and belongings but even our identities.”
    sadly the criminal technologist will ALWAYS be one step ahead. Forewarned is forearmed.

    (Response: Yes…the criminals/terrorists are always one step ahead .unconstrained by ANY values that we are. I would NEVER want the police to be unconstrained as the other side are …but although I share many of the concerns some have expressed, I believe if the Court had said no cell phone searches at all without a warrant first that would have added just another critical time advantage to evil. h.o)

  11. Gary T says:

    Another thing that I read in one report, is that if you password protect your phone or device, the police are required to get a warrant before they can force a search of that device. So for those of you that are worried, just put a pass word on your device, and all is good.

    (Response: Interesting…but I thought they already have ways to get around passwords? Other than waterboarding! 🙂 h.o

  12. morry says:

    By the way H.O. The true Terrorists, as opposed to the boogey men that some see, do NOT have Cell phones that can be traced. And they use cell phones that are ditched or switched on a very regular basis. The courts have made a good law but not sure how it will help much in tracking/catching the evil doers.

    (Response: The right to search will now be another weapon in the police arsenal: if the criminals ditch phones, that’s one thing, but if they get caught cell-handed with one they been using for a while, the evidence gathered legally could prove their undoing. Wonderful. h.o)

  13. Gary T says:

    Bamboo shoots under the finger nails ???

    (Response: At least they should use CANADIAN wood! h.o)

  14. JT says:

    Re your comment on number 11. They do not. At least not unless they employ waterboarding or rectal infusion (ouch). A few wrong attempts and the device is automatically wiped clean. I’m all for law enforcement but infringement of individual rights under the cloak of so called national security is getting completely out of hand.

    (Response: I guess then Harv’s new law of possibility will apply: the cops will not necessarily be able to search phones, but will be able to at least try to search, if necessary. h.o)

  15. morry says:

    I’m all for law enforcement but infringement of individual rights under the cloak of so called national security is getting completely out of hand.

    Ain’t that the truth!! I have been totally pissed off at all the BS security at airports and other venues ever since 9/11. What a load of croak! And the sheeple go blindly along with it ….mumbling Vacuous platitudes “about keeping us safe”. BS i say! Making us take our shoes off , etc., is all BS. And the laws infringing on our rights keep coming in dribs and drab, with nary a peep from the people. Only the Civil Liberates groups are challenging the politicians. It

  16. Lester says:

    Sorry, Harv, gotta disagree. There are already tools for police to use against suspects who would commit terrorist acts.

    This will be used to go fishing for crimes if someone is caught loitering.

    (Response: I don’t believe you are correct. My reading of the ruling is that police can ONLY mine for info regarding the arrest … not just look for something else. I really don’t think police are going to actually arrest someone (another requirement BEFORE searching the phone) for loitering…just to search their phone for info regarding their loitering. h.o.)

  17. JT says:

    Harvey re your reply to 16 I have to think you are pretty naive if in the course of legally searching a suspects phone the police will ignore something totally unrelated should they stumble across it. While that finding may not be admissible in future proceedings it will certainly get the ball rolling on the next investigation and though this in the end may be a good thing it nevertheless violates the rights of the individual.

    (Response: I agree it can pose problems, but again, I’ve NEVER seen a legal system that is perfect and, in the face of the undeniable facts now that organized crime and terrorist groups are making major use of cell phones …not home or business land lines …I agree with the Court, that the police should have limited rights to search them for relevant info after an arrest. We can’t keep demanding police be more effective in protecting us from terrorists, catching those who steal our identities, from organized crime etc…but then handcuff them in almost every way involving today’s prevalent modern technology. h.o)

  18. JT says:

    Harvey, I share your concerns but would argue that “limited” access will just not happen in the real world. As an extreme example and of course one way beyond the scope of what we are discussing here do you really believe that if the police came across an atrocity about to happen tomorrow while investigating another crime it would be ignored? Of course not and of course it shouldn’t be but where does this end? Welcome to the world of Mr Cheney.

  19. 13 says:

    Seems weve got another jihadist holed up in a coffee shop in Sydney Austrailia. Its early and all the facts arent in yet but Ill bet the hostages would do well to read eafs post. It would reassure them that they have nothing to worry about.

  20. seven says:


    Insightful comment on Nat Po story re same:

    GaryMWilson Bruce • 5 hours ago

    “The problem is not that 10% of 1.6 billion Muslims are radicals. The problem is that 10% of 1.6 billion Muslims are giving a more honest reading of the Qur’an.

    90% of Muslims, like 90% of followers of every other religion, are able to execute great feats of logical gymnastics to rationalize their decisions to ignore explicit directives of intolerance and violence in a book that they consider the perfect word of god. The only reason the are able to do this is that their inherent human morality is stronger than their indoctrinated faith in ridiculous scripture.

    10% are not able to do this, and instead read or interpret scripture in the most honest and straightforward fashion. And then act on it. Just like 10% of virtually every other religion.

    Blaming all Muslims for the atrocities of a few is idiocy.

    Refusing to acknowledge that Islam is filled with atrocious ideas is even worse.

    If you want to put a band-aid on this problem, we need to, at the very least, reform Islam.

    If we want to solve this problem, we need to liberate people from faith. From believing in monstrous ideas (like Islam) for which there is simply no evidence.”

    (Response: I’m sure glad most Christians and Jews don’t take EVERY passage in the Bible literally! We’d be stoning people to death almost every day for all kinds of “sins” now practiced widely and daily in our populations. h.o)

  21. seven says:

    fyi: The counterpoint to #Illridewithyou: #Iwontridewithyou, is now trending.

  22. 13 says:

    I wonder how much longer the list of targets and victims must get before we begin to take terrorist threats to heart. They have said that they will take the fight for their cause to our shores. Indeed they have. From New York to Sydney, and all over the globe. Terrorists tossing a few bombs, taking a few hostages, killing a few school kids.
    To claim that we kill our own by domestic violence, starvation, drunk driving etc is just sticking your head in the sand. Of course we must put an end to these problems but as the saying goes two wrongs dont make a right.
    If giving law enforcement better tools to fight terrorists and domestic threats means that cell phones can be searched so be it. What exactly is the alternative?

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