Recent changes in the law requiring police to obtain search warrants before examining the contents of smartphones shouldn't apply to older, less-advanced cellphones, a Crown lawyer told
Investigators didn't get a warrant before sending the phones, which were protected by passwords, to a technical lab in
Several recent decisions, including one last year from the
But Crown counsel
"Given their age and limitations, these devices didn't give rise to heightened privacy interests," Banning told a three-judge panel.
Banning argued such a phone should be treated like a briefcase, which police would be permitted to search if it's seized during an arrest, rather than a computer.
She noted the two BlackBerrys seized from Mann had storage capacities of 32 megabytes and 64 megabytes. Nearly a decade later, smartphone capacity is measured in gigabytes -- a measurement that's roughly a thousand times greater than a megabyte.
"I have a real difficulty defining a line by the storage capacity of the thing," said Bauman.
Banning said it should come down to how similar a phone's capabilities are to a computer.
"They simply did not contain vast amounts of personal information," said Banning.
"It's not simply a matter of numbers ... but it's also a distinction in functional capacity."
Banning said her arguments dealt with the specifics of the kidnapping case, and she stressed she wasn't calling for set of rules to guide future cases.
A day earlier, Mann's lawyer,
Mann was convicted two years ago for his role in a kidnapping that saw
Charges were originally laid against Mann,
The Appeal Court's ruling will be the latest in a string of cases to deal with warrantless searches of cellphones and computers.
The high court will hear another case in April dealing with phones that are found on suspects when they are arrested.
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