Courts continue to grapple with the apparently difficult issue of searching cellular phones incident to arrest. In one of the most recent rulings, Boswell J seems to forge a somewhat new and much more restrictive approach to the issue: R v Liew,2012 ONSC 1826. A curious ruling given the recent comments of the Court of Appeal in R v Manley, 2011 ONCA 128.
A nice summary of Liew and commentary can be found on Westlaw Canada's CriminalSource's newest newsletter: Police Powers Newsletter 2012-01.
In brief, Liew was arrested on grounds that he was importing cocaine. A search incident to arrest revealed a Sony Erikson cell phone. The officer decided search the phone incident to arrest. The stated purpose for this search was to find "immediate phone calls and immediate texts" [para 15]. The officer did find some recent phone calls. The search of the phone lasted approximately 7 minutes [para 17].
After a thorough review of the recent cases discussing this issue, Boswell J held that the search incident to arrest of the phone violated section 8. In doing so, Boswell J offered the following statement of law in relation to this issue:
First, the power of a police officer to search an arrestee for evidence of the crime that is the subject of the arrest, and seize any such evidence, requires an objective reason to support the belief that the item may be evidence of the crime.
Second, the objective reason to believe the item may be evidence of the crime must be apparent in the circumstances of the arrest. The standard governing the manner and scope of a SITA is a reasonable prospect of securing evidence.
Third, the power to seize a cell phone during a SITA where there is reason to believe it may afford evidence of the crime does not include a power to examine the contents of the cell phone without a prior judicial authorization, absent exigent circumstances [para 142].
This last requirement, with respect, seems inconsistent with the recent comments of the Ontario Court of Appeal in Manley and more recently in R v Jones, 2011 ONCA 632. It is adds confusion to an already difficult landscape of caselaw on this point.