“Anonymity on the Internet is a critical component of Information Privacy” ; So says the Federal Privacy Commissioner after the release of the Supreme Court of Canada decision stating that police must obtain a search warrant to obtain basic subscriber information, including one’s IP address, when an officer suspects criminal activity.
This decision also brings into question a recent decision of the Ontario Court of Appeal wherein the Court ruled that police did not require a search warrant to search the cell phone of an arrested accused if the phone is not password protected. A recent United States Supreme Court decision came to the exact opposite conclusion: that Police must obtain a search warrant except in exigent circumstances, which are limited to T.V. show scenarios- i.e., Jack Bauer in 24- such as imminent detection of a bomb that is about to detonate.
Defending our Personal Privacy
In the information technology age we have the same privacy interests, it’s just that our private lives extend to the online places we visit and the objects we possess- the internet, and our computers and cellphones. The Charter of Rights protects us against unreasonable intrusions into our privacy via Section 8, which states that everyone has the right to be secure against unreasonable search and seizure. The test the court applies in deciding whether this right comes into play in a particular circumstance is whether there is a reasonable expectation of privacy in the information and object we possess, or the activity we are involved in, whether it is conducted in the privacy of our own home, in our automobile, or on the cellphone we carry.
Now, don’t take this decision to mean one is protected from government intrusion when conducting illegal activity in your home, your car, or on your cellphone. If the police have reasonable grounds to believe a criminal offence has taken place, and there is evidence of it in your home, in your car, or on your computer or cellphone, they can obtain a search warrant to search any of these “places”. There is some information about you and your life that police do not require a search warrant to obtain. For example, police can obtain information about your electricity usage in your home without a warrant, presumably as part of an investigation into a marijuana grow operation, or a crystal meth lab. In other circumstances, such as crossing an international border, or driving in your car, the courts have found that there is a reduced expectation of privacy, and thus a search without a warrant may be reasonable in these places where they would otherwise not be (such as in your home). Finally, police have a right to search an accused person and their motor vehicle as incident to a lawful arrest, however, they may not be able to search the contents of any cellphones found on you, in your car, without first obtaining a warrant.
Do Not Give Consent to be Searched without a Warrant
Don’t forget that the police can search you, your cell phone, or even your home, without a warrant if they obtain your informed consent. Do not consent to anything without first obtaining legal advice from an experienced criminal lawyer. Do not stop a police officer from searching you, your car, or cell phone, but do make it clear to the officer that you are not consenting to the search.
The Criminal Law Team has over 65 years of experience defending criminal charges, including cases involving warrantless searches, and searches conducted pursuant to a search warrant. Whether the police have charged you after a search of your home, IP address, or they searched your pockets on the street, you need to obtain sound legal advice and representation from criminal defence lawyers who are familiar with all the defences that are available to you to defend yourself. You will be surprised how often police think they have a right to search an accused, his computer, or his cellphone, when they are dead wrong. You will be even more surprised how often police mess up search warrant materials and the evidence- and the case- get thrown out. Protect your rights. Protect your privacy. Contact us anytime. Visit our website at www.thecriminallawteam.ca