In a unanimous decision, three B.C. Court of Appeal justices have dismissed an appeal from convicted kidnapper Rajan Singh Mann.
Justice Risa Levine's reasons for judgement, which were supported by Chief Justice Robert Bauman and Justice Kathryn Neilson, concluded that police violated Mann's constitutional right to be free of an unreasonable search and seizure when his two Blackberry devices were taken without a warrant and examined in 2006 and 2008.
However, the evidence was still deemed admissable.
"The law as it stands today no longer permits police to conduct warrantless searches of the entire contents of an individual’s cell phone," the decision states. "The admission of the evidence obtained from the searches of the BlackBerrys would not, however, bring the administration of justice into disrepute. Accordingly, the evidence is not excluded."
The B.C. Civil Liberties Association was an intervenor in the case, arguing that the search and seizure of the smartphones violated section 8 of the Canadian Charter of Rights and Freedoms.
Mann was determined to be the driver in a kidnapping of a man who was taken to an apartment where his wife was. The victim's wife was instructed to deliver ransom, but she talked to a friend and both contacted police. The kidnappers were eventually caught and no ransom was ever paid.
According to the B.C Court of Appeal ruling, the examination of the two BlackBerrys resulted in the recovery of 341 messages sent and received. The Crown relied on 103 of those messages in its case.
The decision noted that the Supreme Court of Canada has ruled: “It is difficult to imagine a search more intrusive, or invasive of one’s privacy than the search and seizure of a personal computer.”
Mann initially elected to be tried by judge alone. The Crown stayed the charges and when the case was resumed a year later, he then wanted to be tried by a jury, but the Crown refused this request.
"The appellant was not entitled to be tried by a judge with a jury," the B.C. Court of Appeal ruled in dismissing the appeal.
The panel of judges also ruled that Mann "failed to establish the high threshold required to overturn the trial judge's findings of fact based on a misapprehension of evidence".