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Court decision that allows police to look through cellphones 'puzzling,' lawyers argue

A man speaks on his Nokia cellphone outside Helsinki railway station in this file photo.

Jarno Mela/AP

When police arrive at your house clutching a search warrant, one ancient legal principle that applies is the "plain view" concept - the notion if they are searching for one thing and stumble across another, the discovery is fair game.

Far less plain, however, in the age of personal electronic devices, are the boundaries that circumscribe that rule, and different judgments by different courts seem to be dispatching mixed messages.

On Wednesday, the Ontario Court of Appeal ruled against a Toronto man convicted of robbery who argued that his constitutional rights were breached when police examined his cellphone and discovered incriminating material, in the form of photos and a text message.

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Because the phone was not password-protected, the court concluded, the search - which it described as "cursory" - was deemed legitimate.

Last year, however, in the far more serious case of Michael Rafferty, subsequently convicted of murdering 8-year-old Tori Stafford of Woodstock, Ont., the balance tipped the other way.

The jury that convicted Mr. Rafferty never had to scrutinize his obsession with child rape and other perversions because when detectives examined the laptop they found in his home, they had not secured a separate search warrant.

And they needed one, Justice Thomas Heeney decided, because in the 21st century, a computer is no longer a "thing," but rather a "place" - a repository of vast amounts of personal information.

The judge's ruling stemmed in large part from an earlier court ruling, also involving a high-profile murder.

In 2007, Markham salesman Chris Little slashed the throat of his estranged wife and strangled a second woman, both of whom had had relationships with Toronto radio sportscaster Rick Ralph.

Mr. Little then staged a clumsy murder-suicide, apparent to police from the outset.

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Yet while his cellphone could be examined for "trace" evidence of blood spatter, scrutiny of its contents needed a second warrant, Ontario Superior Court Judge Michelle Fuerst wrote, and there wasn't one.

In this week's appeal-court case, both the Canadian Civil Liberties Association and the Criminal Lawyers Association of Ontario argued unsuccessfully that this search, too, was out of line.

And outside court, the convicted robber's lawyer, Sam Goldstein, said he is contemplating an appeal to the Supreme Court of Canada, where several other similar cases await scrutiny.

But defence lawyer Dirk Derstine, who succeeded in getting the Rafferty laptop evidence excluded from the jury, believes that whether the robber's cellphone was password-protected or not, a larger issue is at stake.

It's one thing for police to pat down a suspect for weapons,  or see what else is in her pockets, he said, but Wednesday's ruling is "puzzling."

"Many courts have found that the things you keep on your phone are essential extensions of who you are - the most private things you have are on that phone.

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"Your electronic data is essentially your new underwear drawer, it has the most private connotations and before the state goes nosing around in it they need an excellent reason or judicial authorization.

"That principle has been significantly weakened now. If I leave my door open that doesn't mean the police can come walking through it, just because it's easy.

"That seems like a funny way to divide the border between what's permissible and what's not."

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About the Author

At The Globe and Mail since 1982, in assorted manifestations, chiefly crime reporter, foreign correspondent and member of the Editorial Board, Tim is now retired. More

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