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"more responsive" to the needs of police. "The general war- search the equivalent of not only your suitcase, but everything rant achieved the legitimate aims of the police investigation in you have ever put in that suitcase," explains Fakhoury. a much more convenient and cost-effective manner than any While Telus has been characterized as a victory for privacy other provision would have allowed," stated Cromwell. rights, "I wouldn't describe it as setting up an obstacle for law The impact on police when assessing how to define the enforcement," says Matheson. "If police would have been persearch and seizure powers related to electronic communica- mitted to wiretap your phone, then they will be able to seize tions is frequently invoked by the Crown in these cases. Jolaine your texts." The decision in Telus and the appeal in Vu, which is Antonio, an intervener and counsel for the Attorney General under reserve, are likely just the beginning of a series of cases of Alberta in the Langley grow-op appeal, warned the Supreme where the Supreme Court is going to be asked to interpret these Court against imposing any special burden on the scope of a issues. Leave has been sought of an Ontario Court of Appeal police search of a computer or mobile phone. "By straying into ruling this spring that declined to set out any new principles or the arena and directing investigative tactics, courts effectively decide if police require a warrant to search any mobile phone become supervising police investigators," stated Antonio in seized incident to arrest. "To put it in the modern vernacular: written arguments filed in the appeal of the B.C. Court of Ap- If it ain't broke, don't fix it," wrote Justice Robert Armstrong on peal's decision in R. v. Vu. The Alberta Crown also suggested the behalf of the panel in R. v. Fearon, concluding on the facts of retrieval of computer data by police should not be characterized that case the search of the device was lawful. as a search or a seizure. "The best approach is to consider it an Even in Telus, the Supreme Court was clear its decision ap'examination' of a lawfully seized object," wrote Antonio. plied only to requests for prospective text messages and not The issue before the court in Vu was whether the RCMP those already sent. Whether the same principles apply to eofficers lawfully searched two computers and a mobile phone mails was not addressed directly. while executing a search warrant at a residence. The tele-warEventually, these issues may be determined, although the rant, obtained from a justice of the peace, permitted police to public at large may have already moved on to newer technoloenter the dwelling to search for "documentation" that would gies to communicate. show ownership of the residence. The federal Crown argued seeking special authorization to search a computer was unnecessary. "On established principles of search and seizure, it was not necessary for the warrant to specifically list computer, Supreme Court of any more than it would have been necessary for the warrant to list cupboards, drawers or filing cabinets," wrote Crown counCanada Counsel and sel Martha Devlin and Paul Riley. Agency Services Neil Cobb, the lawyer for Vu, urged the Supreme Court D. Lynne Watt Henry S. Brown, QC to reject a "one seizure fits all" approach because of "vast resGraham Ragan Guy Régimbald ervoirs of intensely private core information" contained on a Matthew Estabrooks computer. If police are allowed to "limitlessly scour" computWith the assistance of: ers for evidence, then "a great deal comes into plain view" imBrian A. Crane, QC properly, suggested Cobb. Eduard J. Van Bemmel, Law Clerk The container or filing cabinet comparison dates back more than three decades and has been accepted by the B.C. courts on whether police can seize e-mails from a smartphone, if it 160 Elgin Street Suite 2600 Ottawa Ontario K1P 1C3 T 613-233-1781 montréal ottawa toronto hamilton waterloo region calgary vancouver beijing moscow london is a lawful search incident to arrest. The capacity of a phone to "potentially store volumes of information does not, in my view, change the character of the search from being lawful as THOMSON ROGERS AND CANLNC EXPERTS TEAM UP TO PRESENT incident to arrest," stated B.C. Supreme Court Justice Anne ntitled-2 1 13-01-14 MacKenzie in 2007's R. v. Giles. CALGARY - JUNE 6TH, 2013, VANCOUVER - JUNE 7TH, 2013 James Sherren, a Vancouver defence lawyer who represented TORONTO - JUNE 24TH, 2013 the co-accused whose smartphone was seized in that case, sugTopics and activities to include: gests volume of information does matter and once a device is • A conversation on SOGC/ACOG guidelines seized and secured, police should be required to obtain a war• Expert witness panel discussion rant to search. "There should be careful consideration given • Fetal monitoring update to conditions attached to the execution of a warrant to search • Challenges to Proof, standard of care The experts you need, and causation The quality you deserve. electronic storage media so as to authorize only a selective as • Case study and mock Examination opposed to a wholesale retrieval of all of the data within the for Discovery www.CanLNCExperts.ca device," says Sherren. Fakhoury adds the filing cabinet or con• Recent developments in the Supreme Court 855-278-9273 (toll free) • Question and answer period tainer analogy fails to grasp the potential scope of any search Experts@CanLNCExperts.ca • Networking wine and cheese reception of a computer or smartphone. "We are allowing someone to Professional Directory The Birth Trauma Conference www.CANADIAN anLNC_CL_May_13.indd 1 L a w ye r m a g . c o m M ay 2013 2:30 PM 45 13-04-11 3:42 PM

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