THE BC Court of Appeal heard arguments on January 20-21 in R. v. Mann. The Court will consider whether the power to search incident to a lawful arrest includes the authority to search the contents of a cell phone. Rajan Singh Mann was twice arrested in connection with an alleged kidnapping.

On the first occasion, Mann’s Blackberry cell phone was seized from him during his arrest. He was released without charge. However, as he remained a suspect, the Blackberry was not returned to him. Several weeks later, Mann was charged with kidnapping and he was again arrested.

During his second arrest, a second Blackberry was seized from the car he had been driving. Both Blackberries were eventually sent for data extraction, which was completed after a significant period of time had passed. The analysis of the Blackberries captured every piece of data generated by the user.

The B.C. Civil Liberties Association, an intervener in this case, argued that applying the traditional rule of search incidental to arrest to mobile devices will significantly undermine privacy rights and greatly expand warrantless police search powers, and is unconstitutional. The BCCLA took the position that, in order to uphold constitutional rights, the law must adapt to recognize that technological developments have increased the privacy interest in mobile devices and that a warrant is necessary to search the contents of a mobile device.

Mann was convicted two years ago for the June 2006 kidnapping of Gary Kwong in Richmond. Charges were originally laid against Mann, William Scott and Terry Richardson. Scott pleaded guilty and Richardson died before the case was finished.

Mann’s lawyer, Peter Wilson, told the court that the RCMP should never have searched the smartphones without a warrant. He said: “Smartphones are potentially repositories of vast amounts of personal information.” He added: “The privacy interests that are engaged with these kinds of devices are markedly different from the privacy interests in other receptacles.” Wilson said: “Because of the significant privacy interests in play, they have to go further and obtain a warrant if they want to do the full forensic analysis of the devices.”