(Published in 24 Hours Jan. 21, 2014)

Richmond case wrong one for BCCLA to champion


   By Leo Knight




The BC Civil Liberties Association is again making news for sticking its nose into a case that isn’t its responsibility. Rajan Singh Mann is appealing the fact that police searched the contents of two smartphones in his possession at the time of his arrest in the 2006 kidnapping of Gary Kwong in Richmond.

The reason the police were interested in the phones is because Kwong’s wife, Vivian Ma, was communicating back and forth with the kidnappers about an amount of money demanded as ransom for Kwong’s return.

B.C. Supreme Court Justice Lance Bernard ruled that the phones were seized in “lawful searches incidental to lawful arrests and that, thereafter, search warrants were not required to search their contents.”

That ruling is now being appealed by Mann, and it is in this process that the BCCLA has secured intervener status. The group wants a reversal of that ruling in the B.C. Court of Appeal.

Now — in what may be a surprise to many of you reading this — on the surface of things I agree with the position taken by the BCCLA. But only so far as in this day and age smartphones contain so much personal information, especially when syncing with computers. They are essentially small, portable computers.

Police need a warrant to search someone’s computer and, in my view, the same rules should apply to a secured smartphone that has much of the same information on it, even though it is portable.

But with that there are a couple of caveats.

The case against Mann was made in 2006 at a time when smartphones were in their relative infancy. The iPhone hadn’t hit the market yet and cloud computing was only an idea. The Mann case should be judged based on the circumstances as they existed when police took the action they did.

The other problem I have with the BCCLA getting involved is that these type of court decisions set precedent law.

In our system, it is the Parliament of Canada that has the responsibility to set and amend the laws of this country.

If a law needs to be amended — in this case, the search and seizure sections of the Criminal Code — then it should be Parliament that is charged with that responsibility. Parliament should look at the totality of the situation, not one small legal aspect of one case from almost eight years ago.

Precedent decisions often have the result of unintended consequences, as opposed to the considered decisions of bilateral, all-party committees in reviewing proposed legislation.

The BCCLA may have good intentions, but this is the wrong way to do it.


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