Canada: Warrantless Searches Of Cell Phones Upon Arrest Are Lawful in Canada – But Strict Safeguards Apply

Last Updated: December 18 2014
Article by Guy Pinsonnault, Pierre-Christian Collins Hoffman and Joshua Chad

Guy Pinsonnault, Pierre-Christian Collins Hoffman, Joshua Chad

A 4-3 majority of the Supreme Court of Canada has found that, under certain circumstances, law enforcement officers may perform a warrantless search of the contents of a lawfully arrested individual's cell phone via their ancillary search powers. This landmark decision in R v Fearon1was released on December 11, 2014.

While they differed in their ultimate ruling, both the majority and dissenting justices noted that significant privacy issues arise within the specific context of cell phone search that make this type of search different from the standard search incident to arrest.

The Canadian position on cell phone searches incident to arrest therefore contrasts with that of the United States, where in the recent case of Riley v. California,2 the U.S. Supreme Court unanimously ruled that police must obtain a warrant to search the cell phone of an arrestee.

Facts

Two robbers (one armed with a handgun) stole jewellery from a merchant as she was loading her vehicle, and fled by car. Shortly thereafter, police officers arrested two suspects, Fearon and Chapman, and located the getaway vehicle.

Upon the arrest of the suspects, the police proceeded with the usual pat-down search and found a cell phone on the person of Fearon not protected by password, the contents of which they browsed. The device contained an incriminating draft text message and the picture of a handgun. After obtaining a warrant, the police searched the vehicle and found the handgun depicted in the photo.

The trial judge found that s. 8 of the Canadian Charter of Rights and Freedoms,3 which entrenches the right to be secure against unreasonable searches and seizures, had not been breached by the warrantless search of the cell phone. Fearon was convicted of armed robbery (among other offences), and he appealed. The Ontario Court of Appeal dismissed the appeal.4

Decision of the Supreme Court

Cromwell J., writing for the majority, dismissed the appeal and found "that there were important law enforcement objectives to be served by a prompt search of aspects of the phone", but that the officers' evidence with respect to the extent of the search was insufficient, thus making it unreasonable. He explained that Canadian courts to date had provided four different views as to whether the search incident to arrest powers of the police extended to permit the searching of cell phones:

  1. Searches of cell phones are permitted;
  2. "Cursory" searches of cell phones are permitted;
  3. "Data-dump" cell phone searches are not permitted; and
  4. Searches of cell phones are not permitted, except in exigent circumstances where a "cursory" search may be permissible.

The Majority elected to go with none of these approaches as Justice Cromwell advocated for setting "meaningful limits" on cell phone searches incident to arrest. For these searches, police must limit the scope of the search, the purposes of the search, and keep detailed notes of what they searched on the phone and why such a search was required as being incident to arrest. In particular, Cromwell J. noted that in general, "only recently sent or drafted emails, texts, photos and the call log may be examined as in most cases only those sorts of items will have the necessary link to the purposes for which prompt examination of the device is permitted."

The Majority judges further affirmed the notion that searching the entire contents of a cell phone is equivalent to searching a computer and triggers considerable privacy interests, drawing a parallel with the Supreme Court's decision in R. v. Vu,5 where it had held that a specific authorization is required to conduct the search of computer or cell phone found during the search of an individual's residence performed under a warrant issued for the search of the premises.

However, in keeping with the Majority's view of the ability to set "meaningful limits" on a search, Cromwell J. highlighted that a targeted cell phone search would not always trigger these extreme privacy interests, as opposed to seizure of bodily samples and strip searches, which are "very great invasions of privacy" no matter how they are conducted.

It is also worth noting that contrary to what the Court of Appeal had concluded; Cromwell J. held that whether or not a phone is password-protected should not change an individual's expectation of privacy. The fact that an individual did not protect his cell phone by password does not constitute a waiver of his/her privacy interests. However, it is unclear from the Majority decision how police would, in practice, be expected to perform a search incident to arrest on a password-protected phone.

The Majority of the Supreme Court summarized as follows the conditions under which a warrantless cell phone search incident to an arrest will not be unconstitutionally unreasonable:

  1. the arrest was lawful;
  2. the search was truly incidental to the arrest pursuant to valid law enforcements purposes, namely:
  1. protecting the police, the accused or the public;
  2. preserving evidence; or
  3. discovering evidence (only where the investigation will be stymied or significantly hampered absent such search);
  1. its scope and nature is tailored to its purpose; and
  2. the police have taken detailed notes of their examination and way the device was searched.

The Majority ultimately found that the search was conducted in breach of s. 8, but only for want of evidence detailing to what extent, how and why the device was examined. Nevertheless, the Majority refused to exclude the evidence as remedy for the violation of Fearon's rights, reasoning, inter alia, that the invasion of privacy of the accused was not particularly serious in the circumstances.

Karakatsanis J., writing for the Dissent, opined that the police were required to obtain a warrant before searching the cell phone. Specifically, Karakatsanis argued that, except in exigent circumstances, a warrant would be required to search a person's phone or other personal digital device, even as part of a search incident to arrest. The Dissent was not opposed to searching cell phones, but argued that a warrant is required to ensure that individuals' privacy interests are appropriately protected. It noted that "a telewarrant can usually be obtained relatively quickly and with little harm to the investigation" and that the police "were entitled to seize the phone pending an application for a warrant."

Impact on White Collar Crime

The decision of the Supreme Court was rendered in the context of armed robbery, a violent crime which can be distinguished from economic offences such as fraud, corruption or criminal competition offences. As Cromwell J. noted, in the particular circumstances of this case, "the police knew a dangerous weapon was on the streets". In such a situation, the incident search of a cell phone appears much more justified and reasonable, given the imminent danger for the safety of the public. Justice Cromwell observed that law enforcement objectives permitting incident searches of cell phones will be "most compelling" in cases of "violence or threats of violence, or that in some other way put public safety at risk [...] or serious property offences that involve readily disposable property, or drug trafficking."

Such circumstances are dissimilar to those where, for instance, the cell phone of an arrestee would be searched on suspicions of participation in financial fraud, unless it is apparent that evidence could be lost absent a search incident to the arrest. Where the incident search is conducted for purposes of discovering evidence, "great circumspection" is required: a warrantless examination of the device upon arrest will only be permitted if "the investigation will be stymied or significantly hampered".

In our view, upon the arrest of an individual suspected of having committed an economic offence, searches of cell phone devices would still require a warrant in most cases. Unlike offences such as robbery involving "readily disposable property", white collar crime generally involves no imminent risk of another offence being committed or violence. In other words, there will rarely be an element of urgency which can, for other types of offences, permit some limited search of a cell phone.

With respect to competition offences, it should be noted that unlike police officers, Competition Bureau agents do not possess incident search powers and must always, save for exceptional circumstances, obtain a warrant to search the contents of a cell phone.

Comments

The Supreme Court attempted to strike a balance between effective law enforcement and the protection of significant privacy interests impacted by cell phone searches. The Majority ruled in favour of a system under which police officers may carry out incidental cell phone searches upon arrest, but pursuant to rather stringent safeguards.

Although the Majority in this case permitted the evidence gathered from the warrantless search of a cell phone to be used against the accused, both the Dissent and the Majority agreed that the search of a cell phone triggers significant privacy interests. Even in the Majority's opinion, the type of cell phone review that is permitted and when such a review is permitted is very limited. Outside of the "search incident to arrest" context, a strong argument can be made that a cell phone search would require a warrant that has specifically considered the privacy interests triggered by this type of search.

Despite such safeguards, the ruling of the Supreme Court means that complete trust is given to police officers with respect to the scope and extent of cell phone examinations incident to arrest. As the dissenting Justices noted, "it is very difficult ― if not impossible ― to perform a meaningfully constrained targeted or cursory inspection of a cell phone or other personal digital device". While the police must detail their search of the device, there will generally be no way to confirm that they did not peer into the contents of the device further than stated in their report.

As Cromwell J. previously recognized in Vu, protocols limiting the way in which a computer may be searched are not, as a general rule, required for a warrant. The Dissent observed that the same reasoning applies to cell phones, but did not preclude the development of such protocols, highlighting that in performing a cell phone search, with or without a warrant, the authorities must not extend the search beyond the scope of the grounds permitting it. Grounds to search a cell phone for a specific purpose cannot provide carte blanche to roam the person's digital life without restraint.

In the context of economic crimes, authorities should be proactive and suggest to the court, when applying for a warrant to search a cell phone, a protocol to protect the powerful privacy interests entailed by such digital devices, which may contain records of viva voce private communications and sometimes be able to track the location where one was while in possession of the device.

As the Dissent observed, seizure of the cell phone pending the granting of a warrant may serve to preserve the evidence contained therein and telewarrants may be obtained within a relatively short period of time; however, it is worth noting that functions and applications available on smart phones permit the user to remotely erase all data contained on the device. The approach sustained by the Majority will arguably be able to prevent the destruction of evidence using such methods.

Finally, we note that the Court did not make an observation as to whether an accused could be compelled to provide his/her password to a locked device during an incident search. The Quebec Court of Appeal held in 2010 that a warrant compelling the accused to provide the password to his computer with a view to incriminate him breached the constitutional protection against self-incrimination and rendered the subsequent seizure of data unreasonable under s. 8 of the Charter.6


1 12014 SCC 77.

2573 U.S. ___ (2014).

3 The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11 (the "Charter").

4 R. v. Fearon, 2013 ONCA 106.

5 2013 SCC 60.

6 R. v. Boudreau-Fontaine, 2010 QCCA 1108.

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Guy Pinsonnault
Pierre-Christian Collins Hoffman
Joshua Chad
Similar Articles
Relevancy Powered by MondaqAI
Borden Ladner Gervais LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Borden Ladner Gervais LLP
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions