Cellphone Privacy & Warrantless Search & Seizure - Barnaby Clem
“The fact that a suspect may be carrying their house key at the time they are arrested does not justify the police using that key to enter the suspect’s home. In the same way, seizing the key to the user’s digital life should not justify a wholesale intrusion into that realm.” 1
One of the topics in the book “Privacy in Peril” written by Richard Jochelson and David Ireland is police searches. More specifically, the book outlines two circumstances which justify warrantless searches by law enforcement officials, these circumstances are: searches that are incident to arrest and exigent circumstance searches. 2 However, one might argue that these two warrantless searches are in direct conflict with section 8 of the Canadian Charter of Rights and Freedoms, which states that “every person in Canada has the right to be secure against unreasonable search and seizure.” 3
The section 8 Charter right was first addressed by the courts in Hunter v Southam (1984). The court in Hunter was determined to define the parameters of search and seizure laws in Canada and provide meaning to the term “unreasonable” in section 8 of the Charter. 4 After much consideration, the majority court in Hunter held that warrantless searches were unreasonable under section 8 of the Charter and the police, as mechanisms of state power, require “authorization based on reasonable and probable grounds, prior to undertaking a search or seizure.” 5 The court further contemplated the addition of a “valid warrant” requirement, where when feasible, the burden is placed upon the state to demonstrate that the states’ interest in obtaining the warrant is of superior importance than that of the section 8 Charter right of the individual. 6 The Hunter decision was famously known thereafter, for establishing the Supreme Court of Canada as the “guardian of the Constitution and promised to protect individuals from encroaching state and police power.” 7
Jochelson and Ireland then proceed to outline that, as time has passed, a number of the Hunter principals in relation to section 8 of the Charter have since been modified, altered or outright abandoned by the courts with the development of case law. 8 As previously mentioned, the court has since developed two key circumstances where warrantless searches are justified under section 8 of the Charter, granting vast search powers to the police in routine situations. The first of these circumstances is, searches that are incident to arrest. Incident to arrest searches permit the police, upon arrest, to conduct a search of the suspect’s property or person. 9 Courts have been accepting of incident to arrest searches, for reasons relating to “safety concerns and to secure evidence pertaining to the crime.”10 However, incident to arrest searches are not without limitation, the lawfulness of this type of search is directly related to the grounds for arrest. Therefore, the police officer must have “reasonable or probable grounds” to make a lawful arrest prior to being permitted to conduct a warrantless search. 11 In the alternative, the common law has permitted incident to arrest searches when the arresting officer has reasonable grounds to believe that “the suspect may have concealed upon his person articles which may afford evidence for an offence, or weapons/objects which may enable the suspect to commit violent acts or escape.” 12 In the very end, one principal holds strong, the search must be truly incidental to the arrest. As the Cloutier court outlines, “the search is only justifiable if the purpose of the search is related to the purpose of the arrest.” 13
The second circumstance which justifies a warrantless police search, is a search done under exigent circumstances. In this instance, police may excuse a warrant in exceptional cases where time is of the essence. 14 The courts have, overtime, concluded that both of these circumstances justify an intrusion upon section 8 of the Charter, in order for police to avoid the loss of evidence and to ensure public safety.
The authors then describe a controversial and debated topic for the courts in modern times, defining the parameters of police powers to search electronic devices and the extent of personal privacy interests in these devices. The authors demonstrated this balance of interests by examining the R v Fearon (2014) case. In Fearon the court was faced with the dilemma of defining the relationship between police powers of warrantless searches incident to arrest and the section 8 privacy interests of searching a suspect’s personal cellphone.15 In Fearon, an armed robbery took place and a suspect fled by vehicle. Police later located the vehicle and arrested Fearon, when they patted him down, incident to arrest, the police found a cellphone in his pocket that contained inculpatory draft text messages and a photo of a handgun. The police then used the information obtained from the cellphone to secure a warrant to search the getaway vehicle. In the vehicle the police found a handgun that matched the cellphone picture. 16
When the Supreme Court heard the case, the majority determined that the cellphone search was permissible as an incident to arrest search and further justified it as a search under exigent circumstances. They reasoned that “the goals of the police search had been public safety (locating the handgun), avoiding the loss of evidence (stolen property), and obtaining evidence of the crime (linking Mr. Fearon to the robbery and locating potential accomplices).” 17 However, the majority also realized that such a free for all type of permissible search could be problematic if not subjected to needed limitations, to prevent routine browsing by police. 18 The majority created requirements for police searches of cellphones incident to arrest, including compliance with “a lawful arrest, the showing of a valid law enforcement purpose, the nature and extent of the search must be tailored to the purpose of the search, and police must take detailed notes of what they examined and how the device was searched.” 19
On balance, the Fearon dissenting judges made valid and persuasive policy arguments that this warrantless search was, in fact, an invasion of the suspect’s privacy and section 8 Charter rights. The dissent argued that, “searches of personal digital devices risk similarly serious encroachments on privacy as a search of one’s home and are therefore not authorized under the common law power to search incident to arrest.” 20 The dissent then pushed back at the majority’s necessity argument for exigent circumstances, as “the police had no grounds to suspect there was an imminent threat to safety and no grounds to believe that there was an imminent risk of the destruction of evidence.” 21
Finally, the dissent recommended a separate standard of consideration, one that is more in line with the principals of Hunter in prioritizing the protection of a suspect’s section 8 Charter rights. This standard justified a warrantless search of a cellphone or digital device on arrest only when “(1) there is a reasonable basis to suspect a search may prevent an imminent threat to safety, or (2) there are reasonable grounds to believe that the imminent loss or destruction of evidence may be prevented by a warrantless search.” 22 The dissent thus argued that the cellphone search of Fearon violated his section 8 Charter right and the evidence should be excluded given the significant privacy interests at stake. 23
With the overwhelming use of cellphones in the modern world, it is a tough pill to swallow in my opinion, to know that our private cellphone use or online information is not protected to the same extent as one might think or hope. As the authors mention, the dissent in Fearon said it best, “digital devices provide a window, not just to the owner’s most intimate actions and communications, but into their mind, demonstrating private, even communicated, interests, thoughts and feelings. Thus, like the search of one’s body or their home, the warrantless search of personal digital devices as an incident of arrest is not proportionate to our privacy interests.” 24
The battle to define the parameters of police powers to search electronic devices and the extent of personal privacy interests in digital devices is a very new topic for the courts, only recently contemplated with the evolution of technology. As such the authors conclude the discussion by posing a question… Which approach should the court foster when faced with intimate searches in the future?
1 R v Fearon, 2014 SCC 77 at paras 132-33 [Fearon].
2 Richard Jochelson & David Ireland, Privacy in Peril: Hunter v Southam and the Drift from Reasonable Search Protections (Vancouver, BC: UBC Press, 2019) at 3-5.
3 Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982.
4 Jochelson, supra note 1 at 13.
5 Hunter v Southam,  2 SCR 145 at 161, 33 Alta LR (2d) 193 [Hunter].
6 Ibid at paras 160-61.
7 Jochelson, supra note 1 at 3.
8 Ibid at 21.
9 Ibid at 102.
10 Ibid at 107.
12 Cloutier v Langlois,  1 SCR 158 at para 47, 105 NR 241 [Cloutier].
13 Ibid at para 17.
15 Fearon, supra note 1 at paras 132-33.
17 Ibid at para 33.
18 Ibid at para 56.
19 Ibid at para 83.
20 Ibid at para 105.
21 Ibid at para 106.
22 Ibid at para 119.
23 Ibid at paras 180-96.
24 Ibid at para 152.