In June, the Supreme Court of the United States issued a unanimous decision in which it held that the U.S. Constitution’s protection against “unreasonable search and seizure” meant that police cannot search the contents of cell phones and smart phones of people under arrest without first obtaining a search warrant.
In Riley v. California, Chief Justice John Roberts wrote that our phones contain “a digital record of nearly every aspect of [our] lives – from the mundane to the intimate.” “Together,” he added, they “can form a revealing montage of the user’s life.” Noting that police could not search files, documents, and other information in a home without a warrant, Roberts concluded that “the fact that technology now allows an individual to hold such information in the palm of his hand does not make the information any less worthy of… protection.” The warrantless search thus violated the Constitution’s Fourth Amendment, which finds its Canadian equivalent in the Charter of Rights and Freedom’s Section 8 protection against unreasonable search and seizure.
Here in Canada, however, the issue remains unsettled as we await a decision from our Supreme Court on the same question.
In May, the Supreme Court of Canada heard arguments in the case of R. v. Fearon, S.C.C. File No. 35298. The case is an appeal of a 2013 Court of Appeals for Ontario decision upholding Fearon’s conviction for robbery. Fearon was arrested after a robbery at a Toronto flea market. Police officers looked through his cellphone after he was arrested and found pictures of a gun and cash, as well as a text message about jewelry.
The Appeals Court held that if a cellphone discovered upon arrest is not locked in any manner, making the contents readily available to other users, and if the officer has a reasonable belief that the cellphone contains evidence relevant to the arrest, a warrantless search is justified as a ‘search incident to arrest’.However, the Court found it impossible to generalize or to create a broad rule regarding the need for warrants to search cellphones upon arrest.
The Supreme Court of Canada ruled in a separate case last year that special authorization is needed to search computers and cellphones during the execution of a search warrant. That case involved searches of a location, such as a house, and didn’t specifically address a search during an arrest.
A decision in the Fearon case is expected in the next six to seven months. Here’s hoping that the Supreme Court of Canada follows the lead of its colleagues in Washington in recognizing that the vast quantities of information on our cell phones should be off-limits upon arrest unless law enforcement can meet the same burden that is required to search for the same information if it was contained on paper or in a folder in our homes.
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