On December 11, 2014 the Supreme Court of Canada continued its trend to recognize privacy rights – and develop the law to protect them – this time in basic cell phone contents. The SCC decided it must modify the police power to conduct prompt cell phone searches incident to arrest because of its increased potential to invade privacy and breach the Charter. The decision increases the protection of privacy for cell phones  – but to a lesser degree than that for computers.

The decision is in the context of criminal proceedings and the limits on police searches. Employers and other non-government bodies aren’t subject to the same restrictions, but the principles surrounding privacy interests are increasingly first enunciated in criminal cases and subsequently spill over into the workplace context when, for example, an employer’s right to search employees’ electronic devices is at issue.

Police arrested Kevin Fearon for robbery with a firearm. When they arrested Fearon, an officer conducted a pat down search of him and found a cell phone. The cell phone was turned on, wasn’t locked or password protected, and wasn’t a “mini-computer” – the officer had to use the keypad to obtain information on the cell phone but it was available from a cursory look at the phone’s contents. Without a warrant, the officer immediately examined the cell phone’s contents and found pictures of a gun and cash, and an incriminating text message; that night and the next morning, police made more searches of the cell phone.

Fearon said the police couldn’t use the information from the searches of his cell phone because they violated his right to be free from unreasonable search and seizure under section 8 of the Charter of Rights and Freedoms: the searches weren’t properly “incident to his arrest” and the court should create a general exception to searches “incident to arrest” for cell phones. The police said they didn’t need a warrant because the search was properly “incident to arrest”: they reasonably believed examination of the cell phone would offer evidence of the robbery and were legitimately concerned about the location of the firearm and the robbery loot, and the search could help them find them.

Four of the seven SCC judges recognized the importance of the police power to conduct prompt cell phone searches incident to arrest – but decided it must modify that power vis-a-vis cell phones because of its increased potential to invade privacy and breach the Charter. The SCC set out a concise four-part test for the search of a cell phone or similar device incidental to arrest, but refused to create an exception to the power for cell phones:

1. Lawful Arrest. The arrest must be lawful.
     
2. Strictly “Incidental to Arrest”. The requirement that the search is “incidental to the arrest” must be strictly applied to allow only searches that must be done promptly upon arrest to effectively serve “law enforcement purposes” (protecting the police, the accused or the public; preserving evidence; and in certain cases, discovering evidence).
3. Tailored Search. Police must “tailor” the nature and extent of the search to its purpose, which practically means that they can generally only search recent emails, texts, photos and the call log (although other searches may be justified in some circumstances).
4. Detailed Evidence of Search. Police must take detailed notes of what they’ve examined on the device and how they examined it that should generally include the applications searched, and the extent, time, purpose and duration of the search.

The SCC decided the initial cell phone search violated Fearon’s Charter rights because there was no detailed evidence about exactly what police searched, how and why. However, the SCC decided excluding the evidence police obtained from the cell phone search would undermine the justice system’s truth‑seeking function in this case and saved it under section 24 of the Charter – but it’s less likely a court will give the same leeway to cell phone searches that police conduct after this decision. However, there’s still considerable uncertainty about the scope of permitted searches.

This decision demonstrates courts’ continuing trend to recognize privacy rights – and to develop the law to protect them:

• Work Computers. In R. v. Cole, the SCC decided employees may have a reasonable – though limited – expectation of privacy in their work computer. Read McInnes Cooper’s: Supreme Court Of Canada Confirms Employees May Have A Limited Reasonable Expectation Of Privacy In Work Computer.
• Computer Contents and Smart Phones. In R. v. Vu, the SCC emphasized that the privacy interests at stake in searches of personal or home computers – including cellular phones – are “markedly different” because the access to vast information made the search an extremely intrusive invasion of privacy. Read McInnes Cooper’s: Privacy In Computer Contents – SCC Picks Up Where It Left Off.
• Online Activities. In R. v. Spencer, the SCC decided that Canadians have a reasonable expectation of privacy in their online activities. Read McInnes Cooper’s: SCC Protects Internet Users’ Expectation Of Privacy In Online Activities.

Each of these decisions was also made in a criminal context – and has influenced privacy rights well beyond. The SCC’s decision in R v. Fearon will likely have a similar impact and the trend to recognize and protect privacy rights is likely to continue in all contexts.

Read the SCC’s decision in R.v. Fearon, 2014 SCC 77.

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Please contact your McInnes Cooper lawyer or any member of our McInnes Cooper Privacy Law Team to discuss this topic or any other legal issue.

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