- 13 A
B
A
30.
Given a mobile phone contains extensive and massive
B
personal and private information and data, the majority recognised that a
C
D
warrantless search of the contents is prima facie “unreasonable” for the
purpose
of
the
Canadian
Charter
unless
justified.
See
C
D
paragraphs 51 - 58.
E
F
E
31.
At the same time, it has been well established that there is a
common law power to search incident to a lawful arrest.
G
H
F
See:
paragraphs 16 - 26. The protection of privacy through the right to be
free of unreasonable searches must therefore be balanced against the
G
H
demands of effective law enforcement. See: paragraphs 2 - 4.
I
J
I
32.
Seeking to strike the balance, the majority have concluded
J
that police officers will not be justified in searching a cell phone or
K
K
similar device incidental to every arrest.
L
Rather, such a search will
comply with section 8 of the Canadian Charter (and thus reasonable and
L
lawful) if it satisfies the following four conditions as revised by the
M
majority (“the Conditions”):
N
O
P
M
N
(1)
The arrest was lawful.
(2)
The search is truly incidental to the arrest in that the police
have a reason based on a valid law enforcement purpose to
O
P
conduct the search, and that reason is objectively reasonable.
Q
R
The valid law enforcement purposes in this context are:
(a)
protecting the police, the accused, or the public;
(b)
preserving evidence; or
(c)
discovering evidence, including locating additional
S
T
Q
R
S
suspects, in situations in which the investigation will
T
U
U
V
V
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