The Star reports on two recent court rulings about police search and seizure of electronic devices.
But digital evidence, like all evidence called during trials, must be tested, and two recent Ontario court rulings underscore what has long been true in wiretap cases: police can tap your phone lines, but that doesn’t mean what they hear will be admissible in court.
This fall, Toronto defence lawyer Darren Sederoff argued the warrantless search leading to the discovery of a text message infringed his client’s (Section 8) Charter rights to be secure against unreasonable search or seizure.
The judge agreed.
In his legal arguments, Sederoff cited a pre-trial ruling earlier this year by Superior Court Justice Brian Trafford, who found police had improperly seized a cellphone belonging to a murder suspect.
“A cellphone was the functional equivalent of a locked briefcase in today’s technologically sophisticated world,” Trafford wrote in his June 17, 2009, ruling. […]
Superior Court Justice Thomas Lederer, however, agreed with Sederoff, citing Trafford’s decision in June that said while police have power to seize a cellphone it “does not include a power to examine the contents of the cellphone without a prior judicial authorization, absent exigent circumstances.”
Despite their rulings, Lederer and Trafford turned down defence motions to exclude evidence taken from the cellphone. Lederer found the conduct of the officer who retrieved the text “was not on the serious end of the scale,” nor did he act in “bad faith.”Nonetheless, the jury didn’t hear expert opinion about the text message after it was excluded on other legal grounds.