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.


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.


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

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

Guy Pinsonnault
Pierre-Christian Collins Hoffman
Joshua Chad
In association with
Related Video
Up-coming Events Search
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

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