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lAw Times • April 4, 2011 A Budget handcuffs our court system s budgets go, Ontar- io's fi scal road map for the next year seemed about as straight and bland as it gets. Until, that is, you look at the line item scrapping the proposed new west Toronto courthouse that will cut $181 million off the Liber- als' spending package. A key question remains as to how the existing courts are go- ing to manage with the delays and backlogs caused by an over- loaded system. Predictably, reaction from the legal profession wasn't posi- tive. Paul Burstein, president of the Criminal Lawyers' Associa- tion, calls it short-sighted and "foolish." "We have the oldest, most outdated courtroom in the country," he says. "Th is may save them $181 million, but it is going to cost them so much more." Shutting down the new courthouse means there will be no one-stop shopping for all related services under one roof. It will mean additional costs for court services personnel, Min- istry of Community Safety and Correctional Services offi ces, and the Ministry of the Attorney General. As usual, there will be more delays and costs for Legal Aid Ontario, Burstein says. "But as the government, they can just keep throwing money at it," he says. Sometimes, even getting those in custody to court is a logistical nightmare, he notes. Even if they're on the premises, there are often delays at many older courthouses in walking them from the holding cells be- cause of poor design. "Most of our courtrooms are so old, there's nowhere to plug in a laptop," he says. "And there's no Internet access. So when you're in a trial and some- thing comes up that requires a little investigation, instead of the parties breaking to stick their heads into their laptops, we adjourn and then all come back again another day." It sounds silly, he says, but if there was a concerted eff ort to shave a few minutes off each case each day, the compounded benefi t would be immense, not just in terms of costs but also for the administration of justice. Th e Ontario Bar Association is more muted but still criti- cal. "Th e OBA is disappointed about changes in plans to invest in justice system infrastruc- ture," says president Lee Akaza- ki. "Our courts will continue to fall behind ever-growing public needs." When the government fi rst announced the new courthouse in 2009, the Liberals were in full spending swagger. Th e facil- ity, they boasted, "will improve access to justice by increas- ing the availability of modern, Inside Queen's Park By Ian Harvey accessible, and secure justice services for the community." Th e need is obvious. Of the 150,000 criminal charges pro- cessed annually in this province, about a quarter of them fl ow through the Toronto courts. Th e process, of course, starts at places like Old City Hall, College Park, Scarborough, and Finch Avenue West and often ends up at University Avenue. But as we all know, it's slow and tedious with overcrowded dockets. As Burstein notes, it seems trivial to get upset over the shelv- ing of a new courthouse when there are serious issues aff ecting health and education in Ontar- io. But justice and the right to an effi cient process are also funda- mental pillars of our society. On a more positive note, ac- cording to Akazaki, LAO saw an increase in funding. "We do not ignore the gov- ernment's considerable fi nan- cial pressure coming out of a recession," he says. "In that re- gard, we were happy to see the $15-million increase in legal aid funding and $31 million over the next three years for victims' programs." Th e Ministry of the Attorney General is also getting another $150 million. So while the justice system may remain slow and cumber- some, clients whose cases don't turn out well or who are denied bail can rest assured their ac- commodations will be more ef- fi cient and modern. Th e budget also calls for the closing of the Toronto West Detention Centre starting with transferring 200 of the 600 or more inmates there to the $593.9-million Toronto South Detention Centre at the site of the Mimico Correctional Cen- tre when it opens next year. Th e government says it will provide "adequate capacity in the system for the next 15 years" and will result in savings of up to 50 per cent per inmate across the board. I'm guessing the Liberals have done some polling ahead of the Oct. 6 provincial election and concluded that those ac- cused or convicted of criminal off ences are less likely to vote. But you can't say the same for those who work in the criminal justice system. Ian Harvey has been a journal- ist for 34 years writing about a diverse range of issues including legal and political aff airs. His e-mail address is ianharvey@ rogers.com. COMMENT Manley wades into debate on police cellphone searches I BY MICHAEL DEMCZUR For Law Times n its recent decision in R. v. Manley, the Ontario Court of Appeal had an opportun- ity to give some direction on the question of how the doctrine of search incident to ar- rest applies to cellphones seized by police from people under arrest. Under the doctrine of search incident to ar- rest, police can search and seize to ensure their safety and that of the public; prevent destruction of evidence; and discover evidence of off ences for which they arrested the accused. In order for a search incident to arrest to be valid, there needs to be a reasonable connection be- tween the search or seizure carried out by police and the off ence they arrested the individual for. Th e of- fi cer's belief that there's a connection must be both objectively and sub- jectively reasonable. Th is is a lower standard than the one of reasonable and probable grounds re- quired to obtain a search warrant. By way of background, over the past four years there have been a number of cases at the trial level that dealt with how search incident to arrest applies to cellphones. Th ey fall into two divergent lines of reasoning. On one side, search incident to arrest applies to cellphones as it would to a notebook, meaning there are min- imal limitations on the scope of the searches. On the other side of the case law, there are strict limitations on the scope of cellphone searches to eff ectively create a de facto exception. Two cases have come to defi ne this split. On the one side is R. v. Giles. In this case, a Hells Angel was arrested for drug traffi cking, and his BlackBerry was seized incident to arrest. Th e BlackBerry was sent for forensic analysis to retrieve e-mails and debt lists. Th e court found the cellphone was like a notebook in terms of the information found in it and, therefore, was properly subject to search incident to arrest. Th e court explicitly rejected the notion that the vast quantity of information that a cellphone can hold gives rise to a qualitative diff erence in the way it should be treated when dealing with search incident to arrest. By contrast, in R. v. Polius, a cellphone was seized and searched by an offi cer who did not have knowledge of the case and thus was found to lack the subjective belief to take it, much less search it. Th is was the case even though the offi cer in charge of the case did have suffi cient knowledge to seize the phone. However, the court determined that the power of search incident to arrest extends only as far as a cursory inspection to determine if the cellphone is to be seized. Th is decision eff ectively resulted in a strict limit on the power to search cellphones incident to arrest. Th e court based its decision on the privacy interests aff ected by the information on a cellphone. Th ere have been several decisions at the trial level that have embraced one or the other of these two lines of reasoning. Th e cases that em- brace Giles have found a tight nexus between the search and the reason for the arrest. By contrast, the cases that embrace Polius have, for the most part, hinged on the lack of a nexus between the arrest and the search. Th e one exception is R. v. McBean. In that case, a police offi cer searched three cellphones seized from three accused that were charged with armed robbery of a gas station. Justice Michelle Fuerst found the offi cer had the proper intent and that he held, both subjectively and objectively, the reasonable belief that the cellphones would aff ord evidence of the crime the accused had been ar- rested for. However, as Fuerst noted: "Th e nature of a cellphone is such that the scope of the power of search incident to arrest is necessarily limited where it is the contents of the cellphone, and not www.lawtimesnews.com Speaker's Corner simply the discovery of the item itself, that is of evidentiary interest to law enforcement." Fuerst went on to limit search incident to ar- rest, absent urgent circumstances, to a limited cursory examination of the phone's external appearance and what would be immediately re- vealed by turning it on. Th is is where the case law stood until Manley. In this case, the Court of Appeal had to deal with a search of a cellphone that was seized incident to the arrest of Michael Manley for a series of break and enters. Police had information from a confi dential informant that Manley had used stolen cellphones in the past. Th ey searched the phone to determine its ownership. In so do- ing, they found pictures of Manley with a sawed- off shotgun. A sawed-off shotgun had been used in a robbery in which Manley was a suspect. Given these facts, how does Manley fi t with the two lines of reasoning? It's not clear as the court decided the case on nar- rower grounds in the decision by Justice Robert Sharpe. "Ownership of the cellphone was relevant to the off ences for which the appellant had been arrested. In my view, this combination of circum- stances provided the police with a lawful basis for conducting a cursory search of the cellphone to determine whether it had been stolen." It's noteworthy that the court applied a much broader notion of cursory search than in McBean or Polius. In those cases, the search was restricted to examining the outside of the phone and, at most, the screen that comes up when it's turned on. In Manley, the offi cers not only turned the phone on but also navigated it while opening various fi les and functions. It was during this process that they discovered the photo. Th e court in Manley goes on at some length about the importance of the photo turning up while police were searching for the ownership of the phone. It indicated that if the photo had turned up after police had determined ownership, the search would have been unlawful. By so fi nding, the court tacitly approved the application of the plain view doctrine to electronic devices. Th e plain view doctrine holds that if police are lawfully positioned and fi nd evidence of a crime, they can seize it without warrant. It is precisely the application of the plain view doc- trine to cellphone searches that is at the crux of the matter. Police who are lawfully searching a cellphone are in a position to discover all types of information that is unrelated to the reason for the arrest. Th e sole prerequisite is that they are looking for something related to the arrest. However, less we think there's a resolution to the issue, the court indicated it's far from per- suaded that Polius was wrongly decided and goes on to comment on the larger issue. "An open- ended power to search without a warrant all the stored data in any cellphone found in the pos- session of any arrested person clearly raises the spectre of a serious and signifi cant invasion of the Charter-protected privacy interests of arrested persons. If the police have reasonable grounds to believe that the search of a cellphone seized upon arrest would yield evidence of the off ence, the prudent course is for them to obtain a warrant authorizing the search." In the fi nal analysis, Manley in some ways gives comfort to both sides of the debate and has not settled how the doctrine of search incident to arrest applies to cellphones seized from accused. While not passing judgment on the Polius line of reasoning, the Court of Appeal has, at the same time, affi rmed the power of police to search the content of cellphones without warrant but indi- cated that doing so is not prudent. Michael Demczur is an assistant Crown attorney in York Region. Th e views expressed are his own and not those of the Ministry of the Attorney General. PAGE 7