- 24 A B A This is particularly so as the police have efficient and effective access to B obtain a search warrant from a magistrate, and there are efficient ways to C D protect evidence in the seized mobile phone pending a warrant, such as putting them in an evidence bag (such as what was done to the Subject C D Mobile Phones in the present case) and, for example (as mentioned in E F G H Fearon and Riley), in a simple Faraday bag which would effectively prevent the means to delete the mobile phone contents remotely.7 58. I am therefore not satisfied that it is proportionate for the purposes of law enforcement to conduct a warrantless search of the E F G H digital content of a seized mobile phone in non-exigent circumstances. I J I 59. Moreover, I also agree with Karakatsanis J’s analysis as to J why the Conditions laid down by Cromwell J would result in greater K K impracticability, police uncertainty and increased after-the-fact litigation. L The learned judge explained these at paragraphs 169, 171 - 172: “[169] ... If a police officer searches a cell phone, mistakenly believing that she has reasonable grounds, the exclusion of the evidence obtained at a subsequent trial does not render the search harmless. The arrested person’s privacy will have been unjustifiably infringed, and their general sense of freedom and security affected, even if any information thereby obtained cannot be used against her. Only a requirement of pre-authorization can give people confidence that their privacy will be respected. As La Forest J. wrote in Dyment, at p. 430: M N O P ... if the privacy of the individual is to be protected, we cannot afford to wait to vindicate it only after it has been violated. ... Dickson J. made this clear in Hunter v. Southam Inc. After repeating that the purpose of s.8 of the Charter was to protect individuals against unjustified state intrusion, he continued at p. 160: Q R S 7 T See also Force Procedures Manual (“FPM”) 21 - 51 at paragraphs 61 - 63, which provide detailed guidelines to police officers as to how to effectively isolate mobile phone from network to avoid its data being tampered with or deleted remotely. L M N O P Q R S T U U V V