[jar_e]

Originally Posted by OMG!WTF!

Well, yeah, anything can be seized in connection to a crime and subsequently searched upon a granted warrant. That's not what you said. What you said was that any video device can be seized and used as evidence without warrant.

The Supreme Court made a ruling specifically about cell phone searches saying that any unwarranted search needs to be in connection to the accused in a crime...

http://www.theglobeandmail.com/news/...ticle22038283/

There are several examples of police seizing video and then having to give it back....Robert Dziekanski for example. Also many examples of cops not seizing video...Sammy Yatim. I'm actually not 100% sure cops can seize a private device in connection to a crime if you are not involved in the crime. Do you have an example of a person's private device being seized and a warrant for search granted? I really don't know the answer to that. The Globe and Mail article contradicts the act you highlighted.

First off, I said in my original post that police could seize the phone as evidence. Not search it. I clarified that in my second post. The physical phone itself could be seized without warrant at the time of incident. Technically its "evidence" at that point, just pending a further search. Its semantics nonetheless, but I feel we're arguing the same point.

There's no point in my replying to that Globe and Mail article as I already stated that police would most likely need a warrant to obtain the video off the phone. Secondly, that caselaw doesn't apply as that was referencing a phone seized from an arrested person which this is not.

Do you have any sources stating that police seized the video and then did not give the device back? The phone is now evidence and is held until the court proceedings so that the accused, who has a right to a fair trial, can have all the evidence presented in disclosure and for court. It is possible that in these incidents the phone was held until trial as it is an exhibit. In my experience, depending on the severity of it, usually the digital data suffices provided it was obtained in the proper channels with tech experts, etc.

Also, I'm not stating every time someone records police that their phone is going to be seized under this. I'm sure there's hundreds of thousands of examples where police did not seize a phone if it recorded an incident. However, I'm simply stating there are the grounds for police to do it if required.

I just posted the Criminal Code section for seizing things without warrant. It does not refer to searching digital devices as most of that is Case Law for right now (hence R vs. Fearon) which declared that warrantless searches of digital data on a cell phone are allowed given they meet the two rules:

1. The arrest must be lawful – This is the case for any situation; it just means if the arrest isn’t lawful, then neither is the search.

1. The search must be incidental to the arrest and police need an “objectively reasonable” reason to conduct the search. These include: protecting police/the accused/the public; preserving evidence; discovering evidence such as finding more suspects.

However, this caselaw is moot when it comes to the point I'm making. The phone can be seized if there is belief that while filming an incident, evidence was captured on said device. A warrant may be required to search the phone and seize the digital evidence from the phone.

A loose comparison would be the ability to seize a vehicle from a roadway (no warrant needed) and then doing a warrant on the vehicle to locate contents that weren't in plain view.