|July 17, 2014|
Previously published on July 15, 2014
Lower courts in both Canada and the US have been deeply divided on the application of their respective Supreme Courts’ precedents on whether the police need a warrant to search the contents of a smart/cell phone seized during a lawful arrest. On June 25, 2014, the US Supreme Court unanimously settled US law in Riley v. California, No. 13-132. The court found that privacy interests at stake outweigh any legitimate governmental interest, absent any “exigent circumstances”.
The Fourth Amendment of the US Constitution provides protection against unreasonable search. A common law exception to the protection under the Amendment is where the search is incident to a lawful arrest.
The Supreme Court assessed, on the one hand, the degree to which the search is needed to promote legitimate governmental interests and, on the other, the degree to which it intrudes upon an individual’s privacy. Writing for the Court, Chief Justice Roberts concluded that the warrantless search of a cell phone, even incident to a lawful arrest, is prima facie unreasonable and, therefore, contravenes the Fourth Amendment for two main reasons:
- Digital data does not present any risks to the legitimate governmental interests identified in connection with the exception - the need to protect officers’ safety or to preserve evidence; and
- More substantial privacy interests are at stake in connection with a search of digital data than there are in connection with a search of physical items - the exception traditionally applies to physical items such as wallets or purses. The court points out that privacy interests in connection with data contained on a cell phone are complicated by:
- The vast storage capacity and the nature of the data stored on the modern cell phone; and
- The fact that the data a user views on many modern cell phones may not be stored on the device itself. This fact renders inapplicable the analogy of treating the cell phone as a container whose contents may be searched incident to an arrest.
The Supreme Court of Canada is set to clarify the Canadian position later this year. The Court heard submissions in Kevin Fearon v. Her Majesty the Queen Docket 35298 on May 23, 2014, on appeal from the Ontario Court of Appeal (2013 ONCA 106).
Section 8 of the Canadian Charter of Rights and Freedoms provides protection against unreasonable search; it, too, allows the common law exception where the search is incident to a lawful arrest.
Canadian cases on the application of the exception are contradictory and, unlike the US cases, create a distinction between a cell phone that is password protected and one that is not, as well as a distinction between a cursory search of data on a cell phone and a full search of the entire contents of the cell phone (see, for example, R. v. Polius,  O.J. No. 3074 (S.C.J.) and R. v. Manley, 2011 ONCA 128). In the most recently decided Canadian case (R. v. Mann 2014 BCCA 231), Levine J.A. concludes for similar reasons as in Riley, that “the law as it stands today no longer permits police to conduct warrantless searches of the entire contents of an individual’s cell phone”. Levine J.A., however, does not address the application of the exception to a cursory search of the contents of a cell phone.
The Supreme Court of Canada reserved its decision in Fearon and the parties are now filing supplemental decisions with the Court, one of which is Riley. US case law is, of course, not binding on Canadian courts but Canadian courts will often turn to these authorities as a useful analysis of potentially applicable principles in Canada.
The nature of digital data and cell phone technology is the same in Canada as it is in the US and presents the same privacy concerns. Justice Roberts points out in Riley that alternatives like allowing warrantless searches of selected categories of data on a cell phone - similar to the suggestion from the Canadian cases that a warrantless cursory search of a person’s cell phone is permitted, if incident to a lawful arrest - “would impose few meaningful constraints on officers” and may not adequately protect the substantial privacy rights at stake when a person’s cell phone is searched.
The analogy on which the distinctions created in the Canadian cases hinge - treating the cell phone as a container whose contents may be searched incident to an arrest - is a poor one. Modern cell phones are increasingly designed to take advantage of the “cloud”, which allows users access to data located elsewhere.
The Supreme Court of Canada has also recognized the importance of informational privacy: R. v. Dyment,  2 S.C.R. 417; R. v. Plant,  3 S.C.R. 281; R. v. Buhay, 2003 SCC 30,  1 S.C.R. 631 at para. 24; R. v. Morelli, 2010 S.C.C. 8 at paras. 3, 105-106,  1 S.C.R. 253.
Will the Court follow the approach of the US Supreme Court and provide clear guidance to law enforcement through a categorical rule that a warrant is required to search an individual’s cell phone incident to arrest, absent “exigent circumstances”? We wait for the decision in Fearon.