Canadian police can now search your phone if you've been arrested

[elguito]

So in a 4:3 ruling the court said 

The search must be done promptly and relate to the arrest, such as looking to preserve evidence or trying to find other suspects.

Police have to keep detailed notes of what was searched — including how and why — otherwise, it will be unlawful. They also have to be prepared to explain why they couldn't wait for a search warrant to look through your electronic device

 

 

Now they also bring up the fact that lower courts have dealt with this before in another case where the accused argued that his phone was searched illegally by the police and the court agreed that this search violated his charter rights but the court also allowed the evidence anyway. the accused lost his case

 

they also say that password protection isn't good enough to stop a search but they don't say what the police can do if the person refuses to give up his or her password

 

 

so i think you should start encrypting you phones if you are about to commit a crime otherwise the police don't have the right to search your phone without a warrant at least in canada

 

 

My Source : http://www.news1130.com/2014/12/11/supreme-court-says-police-have-limited-right-to-search-a-suspects-cell-phone/

 

[Jaybird]

All you have to say is, "I would like to speak with my lawyer." The more you say while your sitting in the back of a patrol car the more likely they will use that information against you. Does everyone remember their rights? You have a right to remain silent, anything you say or do with be held against you in the court of law...etc.

[elguito]

Your right to remain silent only protects you not your phone so if you don't have a password on your phone they can still search it and before you tell me that your phone is password protected i know people who don't protect their phones

[RelentlessAF]

Mines encrypted despite not committing crimes. I just like security I guess.

[Sidiox]

They can't force you to give your password though. So if you are wise and have a pin/pattern or pass on it they can't search it. 

[Yoinkerman]

All you have to say is, "I would like to speak with my lawyer." The more you say while your sitting in the back of a patrol car the more likely they will use that information against you. Does everyone remember their rights? You have a right to remain silent, anything you say or do with be held against you in the court of law...etc.

This is Canada we don't have the right to remain silent.

Edit: sometimes we do, though it's more of a right to not self incriminate

[Trik'Stari]

This is Canada we don't have the right to remain silent.

Seriously?

 

How can they force you to speak, put a gun to your head?

[RH00D]

They can't force you to give your password though. So if you are wise and have a pin/pattern or pass on it they can't search it. 

You could be extra wise and not carry a cell phone. 

[Yoinkerman]

Seriously?

How can they force you to speak, put a gun to your head?

It's not quite that we have to say anything, it's more that if you don't you're basically assumed as guilty and they ruin the next few days for you even of you haven't done anything. They can use basically any grounds to tear your vehicle apart and make you foot the bill for all damages even if they don't find anything. Or just make stuff up and you're guilty because the officer says so and you essentially have no way to counter it.

[RH00D]

This is Canada we don't have the right to remain silent.

Edit: sometimes we do, though it's more of a right to not self incriminate

 

Seriously?

 

How can they force you to speak, put a gun to your head?

 

There actually is a right to remain silent.

 

The right to silence is protected under section 7 and section 11© of the Canadian Charter of Rights and Freedoms. The accused may not be compelled as a witness against himself in criminal proceedings, and therefore only voluntary statements made to police are admissible as evidence. Prior to an accused being informed of their right to legal counsel, any statements they make to police are considered involuntarily compelled and are inadmissible as evidence. After being informed of the right to counsel, the accused may choose to voluntarily answer questions and those statements would be admissible.

 

It doesn't explicitly state "The right to remain silent." But they have ruled that the right to silence is protected under the text of section 7. Which can be found on this page under the "Legal Rights" heading: http://laws-lois.justice.gc.ca/eng/const/page-15.html

 

http://en.wikipedia.org/wiki/Right_to_silence#Canada

http://en.wikipedia.org/wiki/Section_Seven_of_the_Canadian_Charter_of_Rights_and_Freedoms#Right_to_silence

[Yoinkerman]

There actually is a right to remain silent.

The right to silence is protected under section 7 and section 11© of the Canadian Charter of Rights and Freedoms. The accused may not be compelled as a witness against himself in criminal proceedings, and therefore only voluntary statements made to police are admissible as evidence. Prior to an accused being informed of their right to legal counsel, any statements they make to police are considered involuntarily compelled and are inadmissible as evidence. After being informed of the right to counsel, the accused may choose to voluntarily answer questions and those statements would be admissible.

It doesn't explicitly state "The right to remain silent." But they have ruled that the right to silence is protected under the text of section 7. Which can be found on this page: http://laws-lois.justice.gc.ca/eng/const/page-15.html

http://en.wikipedia.org/wiki/Right_to_silence#Canada

http://en.wikipedia.org/wiki/Section_Seven_of_the_Canadian_Charter_of_Rights_and_Freedoms#Right_to_silence

Quote Wikipedia to the officer who decides you're guilty of something, see how far it gets you

[Trik'Stari]

It's not quite that we have to say anything, it's more that if you don't you're basically assumed as guilty and they ruin the next few days for you even of you haven't done anything. They can use basically any grounds to tear your vehicle apart and make you foot the bill for all damages even if they don't find anything. Or just make stuff up and you're guilty because the officer says so and you essentially have no way to counter it.

That's sort of the same as the US. Except here they have to charge you within 24 hours. Although they can make shit up here as well. All depends on whether or not you have a good lawyer

[RH00D]

Quote Wikipedia to the officer who decides you're guilty of something, see how far it gets you

I also gave a link to the official Canadian government justice website which outlines the entire Charter of Rights and Freedoms where you can find section 7 for yourself. I just quoted Wikipedia because it does a good job of explaining it.

 

http://laws-lois.justice.gc.ca/eng/const/page-15.html

 

[The_Evenger]

It's not quite that we have to say anything, it's more that if you don't you're basically assumed as guilty and they ruin the next few days for you even of you haven't done anything. They can use basically any grounds to tear your vehicle apart and make you foot the bill for all damages even if they don't find anything. Or just make stuff up and you're guilty because the officer says so and you essentially have no way to counter it.

so if they decide they want to search your car, and find nothing, and damage it somehow, you half to pay for it?? that's just ridiculous!

i have no idea what the laws are where i live, but no matter what that's just injury to insult.

[Sidiox]

You could be extra wise and not carry a cell phone. 

Yeah but that would make my crime related activities harder you know, some times I have to call my drugsdealers on the go. 

[dizmo]

Figured something like this would come around. They can order you to unlock the phone, and if you refuse it would be a charge. Possibly obstruction. Pretty simple, really.
Whether or not the Crown would bother pursuing that in court is another thing entirely.

 

@RH00D you beat me by minutes, but very well said.

 

They can't force you to give your password though. So if you are wise and have a pin/pattern or pass on it they can't search it. 

Actually some US states I believe can. Not sure how they'd do it, but it was decided that it's not a right.

 

It's not quite that we have to say anything, it's more that if you don't you're basically assumed as guilty and they ruin the next few days for you even of you haven't done anything. They can use basically any grounds to tear your vehicle apart and make you foot the bill for all damages even if they don't find anything. Or just make stuff up and you're guilty because the officer says so and you essentially have no way to counter it.

 

Quote Wikipedia to the officer who decides you're guilty of something, see how far it gets you

The officer doesn't charge you, the Crown does. The officer simply suggests charges to them.

You're never assumed guilty, that's a basic freedom.
Your lack of knowledge about our legal system both worries and appalls me.

 

That's sort of the same as the US. Except here they have to charge you within 24 hours. Although they can make shit up here as well. All depends on whether or not you have a good lawyer

"But judge, he was terrorizing those people. Just selling loosies on the corner."

"What! Hold him indefinitely."

:rolleyes:

 

probably a little cold of an example given the timing but...well..you know

 

so if they decide they want to search your car, and find nothing, and damage it somehow, you half to pay for it?? that's just ridiculous!

i have no idea what the laws are where i live, but no matter what that's just injury to insult.

No. You have rights against unreasonable search and seizure, as most countries do.

However if they do search you vehicle or house and damage something, no, they don't pay. Why would they? That would deter them from doing their job.

"Well Jim, you broke the door when you knocked it in, so we have to deduct that from you pay."

[Sidiox]

Figured something like this would come around. They can order you to unlock the phone, and if you refuse it would be a charge. Possibly obstruction. Pretty simple, really.

Whether or not the Crown would bother pursuing that in court is another thing entirely.

 

@RH00D you beat me by minutes, but very well said.

 

Actually some US states I believe can. Not sure how they'd do it, but it was decided that it's not a right.

 

 

 

Weird, although I'm not expert at all on the US legal system (which is a total abomination anyways imo) but I though that in at least most states it was considered knowledge and you are never required to give knowledge. 

 

If that is the case I do wonder what the (legal) reaction is if you say "darn I just happen to have forgotten my password", because that is not unthinkable, especially in a stress situation sitting in the back of a police car for instance. 

[dizmo]

Weird, although I'm not expert at all on the US legal system (which is a total abomination anyways imo) but I though that in at least most states it was considered knowledge and you are never required to give knowledge. 

 

If that is the case I do wonder what the (legal) reaction is if you say "darn I just happen to have forgotten my password", because that is not unthinkable, especially in a stress situation sitting in the back of a police car for instance. 

Yeah, I can't recall exactly how it worked. It was something to do with Apples new way of encrypting things.

It might be that they're allowed to break into your phone even if it's password protected. That'd make more sense.

[Sidiox]

Yeah, I can't recall exactly how it worked. It was something to do with Apples new way of encrypting things.

It might be that they're allowed to break into your phone even if it's password protected. That'd make more sense.

An important note about Apple's finger ID (and that same thing on the HTC max, and I think that Samsung also has it) is that they can force you to unlock the phone using your finger, because your finger print is not considered knowledge

Break into your phone? How would they do that? I'm hardly an Android security expert, I only mess with root and stuff, but wouldn't breaking into it require hooking it up to a laptop to read the file system (and then ofc needing something to translate all the Android crap you find (ie logs) to something you can read). And if you have encryption of some sorts, for Emails and such? Brute forcing this would be quite power and time consuming in most cases, so not something they can just do in that car. But this also applies to when they get a warrant to search it, and again you say you have forgotten the password.

[Trik'Stari]

Figured something like this would come around. They can order you to unlock the phone, and if you refuse it would be a charge. Possibly obstruction. Pretty simple, really.

Whether or not the Crown would bother pursuing that in court is another thing entirely.

 

@RH00D you beat me by minutes, but very well said.

 

Actually some US states I believe can. Not sure how they'd do it, but it was decided that it's not a right.

 

 

The officer doesn't charge you, the Crown does. The officer simply suggests charges to them.

You're never assumed guilty, that's a basic freedom.

Your lack of knowledge about our legal system both worries and appalls me.

 

"But judge, he was terrorizing those people. Just selling loosies on the corner."

"What! Hold him indefinitely."

:rolleyes:

 

probably a little cold of an example given the timing but...well..you know

 

No. You have rights against unreasonable search and seizure, as most countries do.

However if they do search you vehicle or house and damage something, no, they don't pay. Why would they? That would deter them from doing their job.

"Well Jim, you broke the door when you knocked it in, so we have to deduct that from you pay."

A shame that judges always side with the police instead of those who are supposed to be "presumed innocent until proven guilty". That's why it's best to have a lawyer that went to college, and was drinking buddies, with every judge in the state that you live in, kind of like our family lawyer heh

[Yoinkerman]

Figured something like this would come around. They can order you to unlock the phone, and if you refuse it would be a charge. Possibly obstruction. Pretty simple, really.

Whether or not the Crown would bother pursuing that in court is another thing entirely.

@RH00D you beat me by minutes, but very well said.

Actually some US states I believe can. Not sure how they'd do it, but it was decided that it's not a right.

The officer doesn't charge you, the Crown does. The officer simply suggests charges to them.

You're never assumed guilty, that's a basic freedom.

Your lack of knowledge about our legal system both worries and appalls me.

"But judge, he was terrorizing those people. Just selling loosies on the corner."

"What! Hold him indefinitely."

:rolleyes:

probably a little cold of an example given the timing but...well..you know

No. You have rights against unreasonable search and seizure, as most countries do.

However if they do search you vehicle or house and damage something, no, they don't pay. Why would they? That would deter them from doing their job.

"Well Jim, you broke the door when you knocked it in, so we have to deduct that from you pay."

Have you actually dealt with the system? Been subject to searches? Been taken in on bogus crap then released later because they had nothing in the first place? Because touting "rights" and protections gets you precisely nowhere in real life if the officer decides he(or she) wants to be a dick. Have you ever declined a "voluntary" vehicle search when they set up a roadblock and are looking for someone who isn't you?(don't decline it, it's a really bad idea) decline a "voluntary" thc breathalyzer and have your car impounded on your dime and have your license suspended on "suspicion" only. Then spend thousands after the fact trying to fight it in court to find out you have no chance of winning anyway.

Sure, get a lawyer and pay them thousands of dollars to get nowhere because your cars seats were shredded for no reason. Or the officer broke your arm when you were arrested on bogus grounds then subsequently let go. See how far you get. See exactly how far the charter goes to protect the everyday layman.

Your lack of experience in the real world is scary and appalling.

[dizmo]

Have you actually dealt with the system? Been subject to searches? Been taken in on bogus crap then released later because they had nothing in the first place? Because touting "rights" and protections gets you precisely nowhere in real life if the officer decides he(or she) wants to be a dick. Have you ever declined a "voluntary" vehicle search when they set up a roadblock and are looking for someone who isn't you?(don't decline it, it's a really bad idea) decline a "voluntary" thc breathalyzer and have your car impounded on your dime and have your license suspended on "suspicion" only. Then spend thousands after the fact trying to fight it in court to find out you have no chance of winning anyway.

Sure, get a lawyer and pay them thousands of dollars to get nowhere because your cars seats were shredded for no reason. Or the officer broke your arm when you were arrested on bogus grounds then subsequently let go. See how far you get. See exactly how far the charter goes to protect the everyday layman.

Your lack of experience in the real world is scary and appalling.

So because I haven't had an unfortunate run in with the law I'm inexperienced in the real world huh?

Funny, not a single one of my friends, or hell, even acquaintances has had a similar experience with law enforcement.

I've never had to deal with the system because I've never done anything that required me to deal with it.

It's not like I haven't had run ins with police. I've had plenty. However, I've apparently handled it a little better than you (if those are things that have happened to you).

And iff an officer broke your arm during an arrest, you had to be resisting. Plain and simple. It's the only way a limb can break.

[Tetters]

It's not quite that we have to say anything, it's more that if you don't you're basically assumed as guilty and they ruin the next few days for you even of you haven't done anything. They can use basically any grounds to tear your vehicle apart and make you foot the bill for all damages even if they don't find anything. Or just make stuff up and you're guilty because the officer says so and you essentially have no way to counter it.

 

You must live in Toronto!!!!!

[Blade of Grass]

This is Canada we don't have the right to remain silent.

Edit: sometimes we do, though it's more of a right to not self incriminate

I would suggest that you look at R. v. Noble 1997 and R. v. Singh 2007, both cases show precedence from the SCC saying that we have a right to remain silence and not testify against ourselves, and both cases also show that someone exercising that right cannot be used to compel a guilty verdict.

This isn't a "sometimes" thing, you have the right not to speak to any form of law enforcement, that's not to say that you should never talk to a police officer (say you're walking down the street and they ask how you're doing, etc), but if you're being detained or arrested, you don't have to talk (again, this can make it more difficult because they can still arrest you if they believe that you have or are going to commit a crime).

 

It's not quite that we have to say anything, it's more that if you don't you're basically assumed as guilty and they ruin the next few days for you even of you haven't done anything. They can use basically any grounds to tear your vehicle apart and make you foot the bill for all damages even if they don't find anything. Or just make stuff up and you're guilty because the officer says so and you essentially have no way to counter it.

I would suggest that you look at R. v. Oakes 1986, the a landmark case against reverse onus (also a SCC ruling), stating that "The Ontario Court of Appeal, on an appeal brought by the Crown, found that this provision constituted a "reverse onus" clause and held it to be unconstitutional because it violated the presumption of innocence now entrenched in s. 11(d) of the Canadian Charter of Rights and Freedoms."

You are innocent until proven guilty. This is a CCRF right, and, as S.52(1) says "The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect."

Note: I am not a lawyer, any and all of what I said above should not be taken as legal advice, if you have a question, contact your own lawyer.

[Yoinkerman]

Case law doesn't mean anything in the heat of the moment, that's what I'm trying to get across here.  When your face is being ground into the gravel because you were walking down the street and refused to answer an officers questions who decided to take a liking to you, having the right to remain silent is really doing you a lot of good.  Even if you're subsequently let go because he knows he's got nothing.