When Can Police Search Your Cell Phone?

Today the Supreme Court of Canada released a very interesting criminal law decision in a case called R. v. Fearon, 2014 SCC 77 (click here to be linked to a full copy of the decision).

To summarize, this decision ends a long running debate about whether Canadian police have the ability to search your cellphone incident to your arrest. The answer, now made unequivocal, is that yes, yes they can.

The first question people might ask is, “is there anything I can do to protect my privacy?” While not specifically set out in the decision, I believe that having a password on your phone can stop such a search in its tracks. I would imagine that an individual’s s. 7 and s. 11(c) Charter rights (which entitle a person not to make a statement to the police) would entitle a person not to respond to the police if they were asked to reveal their phone password. For now I assume that only some sort of court order could force a person to make a statement revealing their password.

So, my advice is that, as always, if you think you are in any way a suspect in a crime, continue to resort to the phrase “on the advice of my counsel I choose not to make a statement at this time.” Then repeat. 

Second, people might be worried that they will now have their phone searched upon any interaction with police. To this I would note that in order for such a search to be valid it must be conducted incident to a valid arrest. This means that being pulled over for a speeding infraction will not entitle the police to search your phone. I would also note that the court held at paragraph 79 that “conversely, a search of a cell phone incident to arrest will generally not be justified in relation to minor offences.” So, in theory at least, such searches should not be taking place incident to an arrest for something like mischief or minor possession.

Third, people might fear that when their phone is searched incident to arrest, police will be able to scroll through every text, every photo, and every poem on the phone generated over the last three years. While I am sure that on occasion the boundary will be crossed in actual practice, the court did at least note at paragraph 78 that “similarly, the fact that some examination of a cell phone is truly incidental to arrest does not give the police a licence to rummage around in the device at will.”

Below I have set out the full test from the decision which you can find at paragraph 83. Consider these steps to get an idea as to whether the search of your cell phone incident to arrest complied with your rights under s. 8 of the Charter of Rights and Freedoms:

1)   The arrest was lawful;

2)   The search is truly incidental to the arrest in that the police have a reason based on a valid law enforcement purpose to conduct the search, and that reason is objectively reasonable. The valid law enforcement purposes in this context are:

a) Protecting the police, the accused, or the public;

b) Preserving evidence; or

c) Discovering evidence, including locating additional suspects, in situations in which the investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest;

3)   The nature and the extent of the search are tailored to the purpose of the search; and

4)   The police take detailed notes of what they have examined on the device and how it was searched.

The hope would be that this police power will only be used in circumstances where a serious crime is alleged and either the safety of police and the public are at risk OR there are reasonable grounds to believe that important evidence will be destroyed or rendered useless if not secured immediately. I will say though, as a practicing criminal defence lawyer I am curious to see how this decision will play out in reality. As with any new decision it will take some time for all the relevant parties to hash out exactly where the boundaries lie.

In short, to me it seems that the test is complex enough to ensure that the nuances of this issue are likely to be litigated many, MANY, times in the years to come.