“We’re committed both to protecting public safety and safeguarding personal privacy, and we believe that proper legal process is the key to striking this balance,” Smith said.
Can law enforcement agencies legally access data on your smartphone here in Canada?
When it comes to the legalities of this question in Canada, there are two important court rulings we must look at.
In June 2014, the Supreme Court of Canada ruled that police need a search warrant to get information from Internet service providers (ISPs) about their subscribers’ identities when they are under investigation.
According to the ruling, a warrant is needed in all but a few very specific circumstances.
- If there are exigent circumstances, such as where the information is required to prevent imminent bodily harm.
- If there is a reasonable law authorizing access.
- If the information being sought does not raise a reasonable expectation of privacy.
In a separate ruling, in December 2014, the Supreme Court of Canada said that police can conduct a limited search of a suspect’s cellphone without getting a search warrant, but they must follow strict rules.
The court said in a precedent-setting ruling that the search must be directly related to the circumstances of a person’s arrest and the police must keep detailed records of the search.
Here are the conditions police must meet to search a cellphone during an arrest without a warrant:
- The arrest must be lawful – This is the case for any situation; it just means if the arrest isn’t lawful, then neither is the search.
- The search must be incidental to the arrest and police need an “objectively reasonable” reason to conduct the search. These include: protecting police/the accused/the public; preserving evidence; discovering evidence such as finding more suspects.
- The nature and extent of the search are tailored to the purpose of the search. This means police activity on the phone must be directly linked to the purpose they give.
- Police must take detailed notes of what they looked at on the device as well as how it was searched (e.g. which applications or programs they looked at, the extent of search, the time of search, its purpose and duration)
The ruling stated it’s best that police wait to get a search warrant for the cellphone in order to protect privacy. Authorities would need one of the three purposes above (protecting police or the public, preserving evidence or discovering evidence) to proceed without a warrant.
Whether a phone is password-protected is not a determining factor, according to the ruling.
A suspect has the right to remain silent during an arrest and not give their password but police are able to take the phone and try to unlock it.
When asked to comment on Rudd’s suggestion that U.K. authorities have access to encrypted messaging apps, a spokesperson for Public Safety Minister Ralph Goodale said he welcomes public debate on emerging technologies and privacy rights.
“Minister Goodale encourages and welcomes public debate on these important issues. Canadians need to reflect on this new and emerging area of law, privacy and crime prevention,” a spokesperson told Global National reporter Reid Fiest.
“The government is constantly updating its policies and tools because of ever-changing technologies. Public Safety, the RCMP, academics and others continue to study these complicated questions.”