Newspaper article The Canadian Press

Supreme Court Says Police Have Limited Right to Search a Suspect's Cellphone

Newspaper article The Canadian Press

Supreme Court Says Police Have Limited Right to Search a Suspect's Cellphone

Article excerpt

Police get limited cellphone search power


OTTAWA - A divided Supreme Court of Canada ruled Thursday that police can conduct a limited search of suspect's cellphone without getting a search warrant, regardless of password protection -- but they must follow strict rules.

The precedent-setting ruling, reached by a narrow 4-3 margin, found that the search must be directly related to the circumstances of a person's arrest and that investigators must keep detailed records of the search.

In a dissenting opinion, the three opposing justices said the police should be required to obtain a search warrant in all cases, except rare instances where there is a danger to the public, police or the evidence itself.

It is the first Supreme Court ruling on cellphone privacy, a 21st-century issue that has already spawned a series of divergent lower court decisions.

But Thursday's ruling failed to satisfy privacy advocates who say it doesn't do enough to protect people from invasive searches of a personal device that already holds a wealth of personal information.

The high court dismissed the appeal of the 2009 armed robbery conviction of Kevin Fearon, who argued that police violated his charter rights when they searched his cellphone without a warrant after he'd robbed a Toronto jewelry kiosk.

The court agreed that the police had in fact breached Fearon's rights, but said the evidence against him on his cellphone should not be excluded.

"The police simply did something that they believed on reasonable grounds to be lawful and were proven wrong, after the fact, by developments in the jurisprudence," Justice Thomas Cromwell wrote for the majority.

"That is an honest mistake, reasonably made, not state misconduct that requires exclusion of evidence."

Cromwell said the court was trying to strike a balance between the demands of effective law enforcement and the public's right to be free of unreasonable searches and seizures under Section 8 of the Charter of Rights and Freedoms.

"In my view, we can achieve that balance with a rule that permits searches of cellphones incident to arrest, provided that the search -- both what is searched and how it is searched -- is strictly incidental to the arrest and that the police keep detailed notes of what has been searched and why."

Fearon's phone had no password protection, but the justices said whether or not a cellphone is locked makes no difference to a user's expectation of privacy.

The ruling laid out detailed criteria to guide police.

The arrest must be lawful, and the search must be "truly incidental to the arrest" and based on a purpose consistent with "valid law enforcement," meaning the protection of the police, accused or the public.

Such purposes would include preserving evidence and discovering new evidence, "including locating additional suspects, in situations in which the investigation will be stymied or significantly hampered absent the ability to promptly search the cellphone incident to arrest. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed


An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.