Our society has changed fundamentally ever since we collectively embraced the smartphone. The amount of information that we are able to store on these devices is limitless. As Justice Fish stated in the 2010 Supreme Court of Canada case of Morelli, “It is difficult to imagine a search more intrusive, extensive, or invasive of one’s privacy than the search of a personal computer”. These days the average iPhone or Galaxy owner stores practcally his entire life on his phone. Social media posts, photographs, e-mails and mapping data exist on our phones and tell a detailed story of our tastes, habbits and whereabouts. One of the challenges of modern laws are to balance the State’s interest in gathering evidence of criminal activity against the suspect’s (and suspect’s family and associates”) right to privacy.
In the 2014 case of Fearon, the Supreme Court of Canada gave the latest word on cel phone searches. Fearon starts from the perspective that digital data is fundamentally different from pre-digital mechanisms. Digital devices store massive amounts of information that sometimes the owner is not even aware exists. As such, the concept of possession – control over an item and knowing that it exists– can become easily blurred in the case of digital data. Accordingly, the SCC has acknowleded that laws governing searches of cell phones must consider the special characteristics of digital technology in light of a person’s right to have personal information private unless warranted by law.
In Fearon, the police arrested the accused for robbery. Without a warrant, they searched his cel phone and found some very incriminating evidence – some text messages and photos relating to the crime. The trial judge found the search to be lawful, and ultimately the case was appealed to the SCC which wrote a 4:3 split decision. Writing for the majority, Justice Cromwell set out the framework for the police when searching a cell phone incidental to a lawful arrest. The decision endorsed the law surrounding a traditional “search incidental to arrest”- that the police must reasonable grounds for the arrest and that there must be a “reasonable prospect” for fiding relevant evidence from the search. The Court then analyzed whether such a searh was justified under the Charter with respect to the privacy rights a suspect has in his cel phone data.
Of note, the Court refused to differentiate between the various brands and models and capacities of cell phones. The Court went on to set out a framework for police to use when they sarch cel phones incidental to an arrest. First, the Court held that there is no presumptive prohibition against cel phone searches, nor are exigent circumstances required. The Court went on to require police to limit cel phone searches to “only recently sent or received emails, texts and photos”. Generally the search of the entire contents are not permitted without a warrant. Cell phone searches will generally only be justified in cases of violence, threats of violence, serious property offeces and drug trafficking offences. Cell phone searches will generally not be justified in cases of minor offences.
Significantly, Fearon imposes a duty on arresting police officers to make detailed notes of the steps they take in executing any search of a cell phone. The record must be comprehensive, outlining the purpose, duration and steps of the search. In essence, the Crown bears the burden of proving that the warrantless search is a lawful one. With such a legal framework in place, courts now have guidlines to test whether, on balance, the police can justify their breach of an accused’s privacy rights when they search a cell phone persuant to a lawful arrest.
With acknowledgement to Scott Hutchison’s paper, “Searches of Cell Phones and Electronic Devices”, presented at the National Criminal Law Program, Edmonton, Alberta, July 2015.