Thursday, December 11, 2014

Police can search smartphone without a warrant on arrest

Smartphones today hold our entire digital lives. Not only do they hold our intimate emails and text messages, but much more importantly our smartphones also contains apps such as Dropbox and OneDrive which are already logged in and allows access to a treasure trove of our most personal files in the cloud. What happens when the police get a hold of our smartphone? The good news is that the courts realize our smartphones are used to do more than just make phone calls, and recognize that a search of a smartphone is much more intrusive than, for example, a simple search of a bag. In R. v. Fearon, 2014 SCC 77, the Supreme Court wrote at at para 51:
[...] the search of cell phones, like the search of computers, implicates important privacy interests which are different in both nature and extent from the search of other “places” [...]. It is unrealistic to equate a cell phone with a briefcase or document found in someone’s possession at the time of arrest. As outlined in Vu, computers — and I would add cell phones — may have immense storage capacity, may generate information about intimate details of the user’s interests, habits and identity without the knowledge or intent of the user, may retain information even after the user thinks that it has been destroyed, and may provide access to information that is in no meaningful sense “at” the location of the search [...]
Moreover, the Supreme Court at para 53 recognizes that the law should not treat a smartphone differently whether it is password protected or not:
An individual’s decision not to password protect his or her cell phone does not indicate any sort of abandonment of the significant privacy interests one generally will have in the contents of the phone.
But the good news ends there. In a ruling released today, the Supreme Court held in R. v. Fearon, 2014 SCC 77 at para 64 & 83 that the police can search a smartphone without a warrant when arresting a suspect, and that this does not infringe on our constitutional rights against unreasonable search and seizure (which is what s. 8 of the Charter is all about):
I therefore reject the idea that s. 8 of the Charter categorically precludes any search of a cell phone seized incidental to a lawful arrest. [...] To summarize, police officers will not be justified in searching a cell phone or similar device incidental to every arrest. Rather, such a search will comply with s. 8 where: (1) The arrest was lawful; (2) The search is truly incidental to the arrest in that the police have a reason based on a valid law enforcement purpose to conduct the search, and that reason is objectively reasonable. The valid law enforcement purposes in this context are: (a) Protecting the police, the accused, or the public; (b) Preserving evidence; or (c) Discovering evidence, including locating additional suspects, in situations in which the investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest; (3) The nature and the extent of the search are tailored to the purpose of the search; and (4) The police take detailed notes of what they have examined on the device and how it was searched.
This is in contrast to a series of rulings by the Supreme Court recently in R. v. Spencer, 2014 SCC 43, R. v. Vu, 2013 SCC 60, and R. v. Telus, 2013 SCC 16, where the court concluded that searches of a computer in a residence required a separate warrant for computer data, and searches of records at a telecommunications provider also required a warrant. Fearon was a narrow 4-3 decision with a strong dissent, and in time it may be overturned. However,  given the state of the law at the moment, it would be prudent to lock your phone with a strong password (instead of a biometric feature like a fingerprint or a weak 4 digit passcode), and to enable strong data protection/encryption.  Finally, keep in mind that if questioned by the police, you are under no obligation to answer any questions, incriminate yourself, or to disclose your password to the authorities.

Friday, April 04, 2014

Supplementary tax bill for new house or condo

A new house or condo can be very exciting. If you're a first time homebuyer as well, that's doubly exciting. But as an owner of a new house or condo, there are also special challenges as well.

One of the things that an owner of a new house or condo must plan and budget for is the Supplementary Tax Bill. At the time of closing, the property is likely assessed as "vacant land" for the purposes of property taxes. Therefore, the first few property tax bills you receive only takes into account the value of the land, but not the value of the buildings or improvements made to the land. 

About 12 to 18 months after title to the property is transferred to you, the Municipal Property Assessment Corporation (MPAC) will perform a re-assessment of your property, taking into account the value of the buildings or improvements made to the land.

 Once the MPAC assessment is completed, you will receive a "Property Assessment Notice" in the mail, setting out the reassessed value of your property. A Supplementary Tax Bill will follow, using the reassessed value of the property and calculating the amount of property taxes owed from the date of occupancy. Depending on the type of building or improvement made to the land, the Supplementary Tax Bill can be many thousands of dollars. The due date for the Supplementary Tax Bill is also relatively short considering the amount payable, and can be as short as 90 days from the date the bill was issued.

 It is very important that homeowners of new homes plan and budget for this expense.