Lower courts in both Canada and the US have been deeply divided on whether police need a warrant to search the contents of a smart/cell phone seized during a lawful arrest. Last week, the US Supreme Court unanimously answered the question of what police must do before searching a cell phone seized incident to an arrest, absent “exigent circumstances” – get a warrant.
In Riley v. California No. 13-132, the US Court found that “privacy interests at stake in connection with search of an individual’s cell phone outweigh any legitimate governmental interest in a warrantless search of an arrestee’s phone.”
The Fourth Amendment of the Constitution provides protection against unreasonable search. One exception is where the search is conducted incident to an arrest. In determining whether the exception applies to searches of data stored on a cell phone, the Court in Riley balanced the degree to which the search is needed to promote legitimate governmental interests with the degree to which it intrudes upon an individual’s privacy. The US Court concluded that the warrantless search of a cell phone, even incident to a lawful arrest, is in the first instance unreasonable and, therefore, contravenes the Fourth Amendment because:
Section 8 of the Canadian Charter of Rights and Freedoms provides protection against unreasonable search. Similar to the US, an exception applies in Canada where the search is conducted incident to an arrest. Canadian courts are divided on the application of the exception in Canada. Unlike the US, our courts 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 recent Canadian case (R. v Mann, 2014 BCCA 23), the BC Court of Appeal concludes for similar reasons as the US Supreme Court 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”. The BCCA, however, does not address the application of the exception to a cursory search of the contents of a cell phone.
The nature of digital data and cell phone technology is the same in Canada as it is in the US, which presents the same privacy concerns. Justice Roberts points out in Riley that alternatives like allowing warrantless searches of certain data on a cell phone – similar to the suggestion from the Canadian cases that a cursory search of an arrestee’s cell phone is permitted without a warrant – “would impose few meaningful constraints on officers” and may not adequately protect the substantial privacy rights at stake in connection with searching an individual’s cell phone.
Our Supreme Court has, on several occasions, recognized the importance of informational privacy: see for exampleR. v. Dyment, 1988 CanLII 10 (SCC), (1988), 45 C.C.C. (3d) 244; R. v. Plant, 1993 CanLII 70 (SCC), (1994), 84 C.C.C. (3d) 203; R. v. Buhay, 2003 SCC 30 (CanLII),  1 S.C.R. 631 at para. 24; R. v. Morelli,  S.C.J. 8 at paras. 3, 105-106.
The Supreme Court of Canada heard submissions on this issue on May 23, 2014 in Kevin Fearon v. Her Majesty The Queen, an appeal from the Ontario Court of Appeal. The Court reserved its decision. The parties are now filing supplemental decisions, one of which is the US decision in Riley. While US case law is not binding on Canadian courts, it will be interesting to see whether our Court will follow the US approach 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”. Stay tuned for the decision in Fearon.