Supreme Court of Canada Allows for Warrantless Phone Searches

by Matt Klassen on December 15, 2014

In a landmark decision earlier this year the U.S. Supreme Court established protections surrounding mobile phones, stating that our boon technological companions are not simply “technological convenience[s],” but instead hold the “privacies of life,” and thus should be protected under the Fourth Amendment against unlawful search and seizure. It looks like their Canadian counterparts disagree.

In a controversial 4-3 decision the Supreme Court of Canada said a warrant is not needed to search the contents of a mobile phone following an arrest, so long as the search is directly related to the suspected crime and meticulous records are kept. It should come as no surprise that the dissenting judges echoed the thoughts of the U.S. judges, noting that smartphones are “intensely personal and uniquely pervasive sphere of privacy”.

Of course Canada has no such amendment to its Constitution, but similar protections of privacy and free speech are included in the nation’s Charter of Rights and Freedoms. But it’s clear that north of the border the question of smartphone security isn’t as cut and dry as it has been down south, once again fuelling the debate between public security and the right to mobile privacy.

The decision regarding warrantless mobile searches was spurred on by the case of Kevin Fearon, who was convicted of robbery with a firearm after police had searched his phone. The search was made after his arrest but before the police had secured a warrant to search his belongings. On his phone the police found a draft of a text message with the words “We did it,” alongside the picture of a gun.

“In my view, we can achieve that balance with a rule that permits searches of cell phones 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,” Justice Thomas Cromwell wrote in the opinion.

As mentioned, the vote was both close and controversial, with the three minority dissenting judges arguing that the law “already provides flexibility where there are exigent circumstances” for a warrantless search, including in the interest of public safety or the prevention of the destruction of evidence, and such warrantless searches should continue to be so limited.

“The intensely personal and uniquely pervasive sphere of privacy in our personal computers requires protection that is clear, practical and effective,” Judge Andromache Karakatsanis wrote for the minority. Not only that, but the judges who have approved warrantless searched have now provided an “overly complicated template” for law enforcement to follow, adding to the likelihood of things still being done incorrectly.

If nothing else it looks like this controversial decision by us crazy Canucks will give visiting Americans one more thing to be confused about: No you don’t have a Constitutional right to carry a weapon, and no, your smartphone is not protected from warrantless search and seizure.

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Written by: Matt Klassen. www.digitcom.ca. Follow TheTelecomBlog.com by: RSS, Twitter, Facebook, or YouTube.

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