Supreme Court allows warrantless cell phone searches

Warrantless cell phone searches are fair game during a police arrest and, conducted properly, do not violate Charter rights against unreasonable search and seizure.

That was the bottom line today as the Supreme Court of Canada handed down its landmark decision in Fearon v. R. — a case that, much to the chagrin of privacy advocates, has granted police powerful new search tools during arrest.

The case stems from an armed jewellery heist, in which police confiscated a cell phone during an arrest and quickly found incriminating evidence, including a text message and photo.

At trial, the judge found that Kevin Fearon’s Charter rights had not been violated, and a subsequent appeal was dismissed.

Today’s final appeal, written by Justice Thomas Cromwell on behalf of the majority (Chief Justice Beverley McLachlin, and justices Michael Moldaver and Richard Wagner), comes with strong minority dissent (justice Andromache Karakatsanis, Louis Lebel, and Rosalie Abella).

The ruling attempts to balance the investigative usefulness of cell phone searches in law enforcement against the rights of the accused against unreasonable invasion of privacy and unlawful search and seizure.

Cell phone searches, the decision states, can aid police officers in identifying risks to public safety, in identifying accomplices, and in locating and preserving evidence. That being said, the judgment warns that “safeguards must be added” to bring these kinds of searches into compliance with the Charter:

“Consequently, four conditions must be met in order for the search of a cell phone or similar device incidental to arrest to comply with s. 8.” These four conditions are as follows:

  1. The arrest must be lawful.
  2. The search must be “truly incidental” and not the object of the arrest, and this condition must be strictly applied;
  3. The nature and extent of the search must be tailored to its purpose (limited to areas where evidence is likely to be found, such as text messages, e-mails, and call logs).
  4. Police must record detailed notes about the search, including applications opened and the search duration.

The new test essentially allows police officers to conduct searches and then sort out the justification after the fact — a prospect that has enraged defence lawyers and privacy advocates, and raises the spectre of abuse.

“Let’s just say I’m skeptical,” says Peter Sankoff, a law professor specializing in criminal evidence at the University of Alberta. “It wouldn’t be the first time we’ve seen limited powers granted and then abused.

“Any time you sanction invasions of this sort and rely upon discretionary tests to limit whether or not the invasion is going to take place properly, it’s incredibly problematic. It’s like, ‘go ahead and we’ll fix it later.’”

The ruling also dispels any notion that a password lock on a cell phone may denote some expectation of privacy that would prevent an invasion by law enforcement.

As Cromwell writes: “I would not give this factor very much weight in assessing either an individual’s subjective expectation of privacy or whether that expectation is reasonable.

“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 . . .”

A post on Osgoode Hall Law School’s The Court blog, meanwhile, points to a contrasting SCC decision in November 2013, R. v. Vu, which deals with incidental computer searches in the course of an investigation that has been authorized by warrant.

In the incident, police obtained a warrant to search a residence they suspected was a grow-op, but the warrant did not include specific authorization to search computer files.

The judgment, again written by Cromwell, took a markedly different approach than today’s ruling. In Vu, the court determined that law enforcement is required to obtain judicial authorization prior to computer or cell phone searches.

Seemingly anticipating the confusion, however, the ruling states the law with respect to warranted searches does not “disturb the law that applies when a computer or cellular phone is searched incident to arrest or where exigent circumstances justify a warrantless search.”

Another contrasting decision was highlight by criminal lawyer Sean Robichaud on Twitter: “police need a warrant to search a person's company computer (R. v. Cole)  but not for their personal phone (R. v. Fearon). Huh?”

Sam Goldstein, who represented Kevin Fearon at the SCC, says, while his client is disappointed, the decision actually is a good thing in that it affords Canadians stronger digital privacy rights.

“Prior to this, the police had unfettered discretion in terms of searching your cell phone,” he says. “Now the court is saying that that discretion is fettered. They can’t simply take your cell phone and root through it like your underwear drawer.”

Goldstein also takes some comfort in a strong dissenting opinion, which stressed the difficulties and potential for abuse when applying conditions on privacy invasions after the fact.

“It’s good to hear the minority of the court express those concerns,” says Goldstein. “At least the majority took to heart some of what the minority was saying by placing limits on police and saying that they have to take detailed notes.”

Going forward, Goldstein says, further litigation will be required to define the scope of the Supreme Court’s conditions and how they apply on the ground in law enforcement.

“Canadians should feel comforted that we have recognition of our digital privacy rights,” he says. “It’s not the complete loaf, but it’s half a loaf.”

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