Law Times

Sept 10, 2012

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DOUGLAS INQUIRY Legal difficulties continue P4 CATASTROPHIC INJURY Province should ignore recommendations P6 ntitled-4 1 $4.00 • Vol. 23, No. 28 COVERING ONTARIO'S LEGAL SCENE • WWW.LAWTIMESNEWS.COM September 10, 2012 12-03-20 10:44 AM L AW TIMES Courts divided on cellphone searches Case to consider police powers to examine devices BY KENDYL SEBESTA Law Times ther into the idea that cellphones aren't akin to briefcases, a lawyer involved in the matter says. "Traditionally, courts have had this paradigm T of viewing cellphones as briefcases when re- ally they are more like digital portals," says Sam Goldstein, who represented Kevin Fearon in R. v. Fearon last week. "Th ey function like time machines and could he Ontario Court of Appeal is consid- ering whether police can search a sus- pect' s cellphone upon arrest without a warrant in a case that could delve fur- the photographs and text messages from his cellphone on the basis that the search violat- ed his s. 8 rights under the Charter of Rights and Freedoms. He argued that allowing them would bring the administration of justice into disrepute under s. 24(2) of the Charter. But Oleskiw ruled otherwise, writing in her decision that because there was a reasonable pros- pect of securing evidence of the off ence connect- ed to the arrest, looking at the contents of the cell- phone wouldn't be a breach of Fearon' secure against unreasonable search and seizure. "I want to be clear that I am not suggesting potentially allow a police offi cer to go back in time or into the future to retrieve personal infor- mation. Because of this, there is an expectation that personal privacy should be higher. But you can't leave it up to the police offi cers to deter- mine how deep, far back or into the future they should be allowed to go. Oleskiw ruled that downloaded images and photographs from Fearon' admitted into evidence. Fearon, along with Junior Chapman and In Fearon, Ontario Court Justice Diane s cellphone could be " Joshua Anang, had been facing a charge of armed robbery and several related off ences aris- ing from the gunpoint robbery of a jewelry mer- chant at the Downsview Park Merchant Market in July 2009, according to Oleskiw' Fearon had applied for an order excluding s ruling. s right to be that an offi cer would be justifi ed in seizing a cellphone and looking at its contents upon every arrest," Oleskiw wrote in her December 2010 decision in Fearon. "However, in the circumstances of this par- ticular arrest, I am satisfi ed that the purpose of the pre-warrant searches was related to the purpose of the arrest and that there was a rea- sonable prospect of securing evidence of the of- fence for which the accused was being arrested. Th e search fl owed from the arrest made on rea- sonable and probable grounds." During Fearon' vised Fearon he was under investigation due to information police had that may have been related to the incident and information offi cers had just seized in a vehicle a short distance away. Following the arrest, the sergeant discovered Fearon's phone during a pat down. Once he had s arrest, a police sergeant ad- FOCUS ON Human Rights Law P9 See Supreme, page 5 'People don't realize how brutal the criminal system is until they get caught in it,' says Sam Goldstein. Photo: Laura Pedersen Windsor lawyer's dream comes true BY RON STANG For Law Times WINDSOR, Ont. — For Windsor defence lawyer Greg Goulin, the Sept. 1 opening of the Windsor Res- idence for Young Men represents not only a personal dream come true but it also fi lls a large gap in the city' The opening of the residence for homeless male youth represents a dream come true for Greg Goulin. Photo: Ron Stang now hasn't had a residence for homeless male youth. Th ere are, however, three such residences for young women. Goulin, a well- known community activist who has received commendations over the years for his work supporting youth, has long served as a board member for one of those residenc- es, Th e Inn of Windsor. s social services. Amazingly, the city up until halfway house nor will it specifi - cally be for young men in trouble with the law. Th e aim is to provide a home for youth who might be vul- nerable to criminal attacks as street youth and to prevent them from sliding into criminal behaviour. "Just the opposite, Th e new residence won't be a who has spearheaded the project for more than a decade with his wife, Bonnie Patrick, a solicitor with a commercial, wills, and es- tates practice. "Th is is not a place of detention. We're looking at the victims of crime. " says Goulin, that 40 per cent of sexual assaults, for example, involve attacks against young males of the age group the residence will serve. He cites a statistic indicating " A DAILY BLOGOF CANADIAN LEGAL NEWS [WWW.CANADIANLAWYERMAG.COM/LEGALFEEwww.lawtimesnews.com LegalFeeds-BB-LT-Apr23-12.indd 1 DS ] to seek to open a residence was an incident in the late 1990s in which a young man had to leave the fam- ily home due to marital breakdown and ended up in the Salvation Army dormitory. During that time, he got into an argument with an older resi- dent. Th at led to a fi ght that nearly killed him, says Goulin. It' Motivating Goulin and Patrick their late teens to be homeless. In fact, the term "couch surfi ng" has entered the popular lexicon. One TV ad, for example, shows police searching an abandoned house only to fi nd a kid wrapped in a sleeping bag with his fl ashlight on a book. He tells them he' s not unusual for males in Local school authorities in See Local, page 5 s studying. CANADIAN LAWYER & LAW TIMES POWERED BY 12-04-16 11:56 AM PM #40762529

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