Recently, the Supreme Court of Canada in R. v. Fearon solidified the law in Canada regarding police searching suspect’s cell phones, without a warrant, when they are arrested. In this article we will not be reviewing the law as set out in the majority judgment. It is indexed as 2014 SCC 77. The bulk of the judgment relating to the substantive changes in the law is found between paragraphs 74 to 84. What we will attempt to do in this article is point out some take away points, from a defence lawyer’s perspective, about the implications of this judgement to Canadian’s privacy rights.
Take Away #1 – Lock Your Phone
The elephant in the room in this judgment is that people who want to protect their privacy rights should lock their phones. People who do, will be almost certain that a police officer cannot search their phone at the time of their arrest without a warrant. The right to remain silent on arrest and not to be obligated to give evidence against yourself, allows people who are arrested to refuse to divulge their cell phone password. The Court addresses this issue in only one paragraph in Fearon, where they state that cell phones, whether they are locked or unlocked, should afford their owners the same privacy protections. Regardless of the legal implications of that statement, practically, when a phone is unlocked it will not afford the owner any privacy protection if a police officer decides to look through it upon arrest.
Take Away #2 – Cell Phones Searched on Drug Arrests are Automatically Fair Game
It is not common in recent years to have the majority SCC judgment use language that seems to give carte blanche police powers, but they seem to have done so with cell phone searches incident to arrest in Fearon. The majority quotes with affirmation the statement that cell phones “are the ‘bread and butter’ of the drug trade and the means by which drugs are marketed on the street” (para 48). Whether an arrest is for an allegation of drug trafficking or drug smuggling, the SCC seems to say that a review of the suspect’s cell phone by officers should be pretty much routine, and will now be legitimized by the SCC. Despite this already being a common practice, and despite the protections the majority writes about later in the judgment, this seems to expand police powers in drug investigations by implying that a “valid law enforcement objective” in a cell phone search will always exist in a drug arrest.
Take Away #3 – The Added Protections in Fearon Will Only Apply “Generally”
As mentioned above, paragraphs 74 to 84 of the judgment set out the measures the SCC says will limit the invasion of privacy that may occur from a search of a cell phone upon arrest. Some of those commenting on this case have suggested that this strikes a good balance between privacy rights and the need to give police power to investigate. I would point out that in this portion of the judgment, the word “generally” is used so frequently, and in such places, so as to potentially devoid these protections of any real teeth in practice.
The majority writes:
“(G)enerally, only recently sent or drafted emails, texts, photos and the call log may be examined… But these are not rules, and other searches may in some circumstances be justified” (para.76)
“(G)enerally, the search of the entire contents of a cell phone or a download of its contents is not permitted as a search incident to arrest.” (para 78)
“(A) search of a cell phone incident to arrest will generally not be justified in relation to minor offences.” (para. 79)
The majority judgment also states that police officers who search cell phones incident to arrest “must make detailed notes of what they have examined on the cell phone.” (para.82) This requirement is not qualified with the word “generally”, but it does not mandate that police officers keep notes of the reason for the search. Keeping notes of the reason for the search is only “generally” required. In my opinion this is a big problem for privacy rights, it leaves the door wide open for police officers to circumvent the safe guards in this judgment by making up reasons for the search after the fact, using information that was not known to them at the time of the search.
The true implications of Fearon will only be known as courts deal with facts arising out of cases and attempt to interpret the requirements of Fearon to those facts. We hope that courts will apply the protections in more than a “general” sense and will give great consideration to the far-reaching privacy interests citizens have in the information in their phones.