Case Mail volume 16 no. 9 (May 1st) is now available on the Law Society website. Produced by the Law Society Library, Case Mail is a free semi-monthly electronic newsletter of digests of Saskatchewan cases with links to fulltext decisions on CanLII. Numerous areas of law are covered, including this criminal law case dealing with warrantless searches of cell phones:
R. v. Adeshina, 2013 SKQB 414 – Court of Queen’s Bench, Acton, November 21, 2013 (QB13414)
The accused was charged with possessing in excess of three kilograms of cannabis marihuana for the purposes of trafficking contrary to s. 5(2) and 5(3)(a) of the Controlled Drugs and Substances Act and with possessing the proceeds of property knowing it was obtained by the commission of an indictable offence, with a value less than $5,000, contrary to s. 354(1) of the Criminal Code. The accused was stopped for speeding. He was driving a rental vehicle and indicated he was travelling to Saskatoon for a five-day business trip although the rental contract was only for three days. The police discovered that the accused had outstanding warrants for driving an unregistered vehicle in Saskatchewan. A search of the accused revealed a white substance thought to be cocaine. The accused was arrested. An officer noted a smell of fresh marihuana in the vehicle and a search revealed 33 Ziploc bags totaling 7,692 grams of marihuana in a duffel bag. Two cell phones were also seized, one located in the vehicle right after the arrest of the accused and one located when the vehicle was searched pursuant to a search warrant. The phones were first checked for their contents almost two months after the traffic stop. The officer checking the cell phones had been away from work for almost a month in the interim. Once the officer checked the phones he sent them to the criminal investigation unit for further checks. There were 682 pages of data recovered from one of the phones. The accused argued that the information on the two cell phones be excluded pursuant to s. 24(2) of the Charter because his s. 8 Charter rights were breached. The accused argued that the searches were without warrant and therefore prima facie unreasonable and not properly incident to arrest.
HELD: The Court determined that the cursory review of the text messages and content on the LG phone when it was seized from the accused at the detachment was part of the search incidental to arrest. The subsequent review of the contents on the phones two months after the arrest and at the criminal investigation unit was determined to be too distant in time to be considered incidental to arrest and was a violation of the accused’s s. 8 Charter rights. The Court noted support for that conclusion from a recent Supreme Court of Canada case. The Crown argued that the searches were authorized by the search warrant obtained for the vehicle; however, that search warrant was not provided to the Court and it was presumably a general warrant that did not specifically include cell phones. The Court applied s. 24(2) of the Charter as follows: 1) the Charter-infringing conduct was not serious. The officer believed that he had the authority to search the one phone incident to arrest and the other phone pursuant to the search warrant of the vehicle; 2) a search of a cell phone is highly intrusive and in this case the police obtained more personal information than was appropriate.; and 3) the information retrieved from the cellphones was reliable and real evidence, which may weaken the Crown’s case if not admitted. The Court noted that there is a clear societal interest in adjudicating trafficking cases on their merits, especially when such large quantities are involved. The Court concluded that, after balancing all factors, the evidence should not be excluded.