Regular readers of this space will recall that last year I was critical of the Ontario Court of Appeal’s decision in the Fearon case, which asked whether a warrantless search of a cellphone by police (related to an arrest) complies with article 8 of the Charter (which prohibits unreasonable searches). The OCA said yes, mainly on three grounds: (1) a cellphone is not all that different from a briefcase; (2) the cellphone in question was unlocked; and (3) it was just a cursory search.
The Supreme Court has now decided the Fearon case and, in a very interesting 4-3 decision, concluded that warrantless searches of cellphones during an arrest are permitted, provided the police take notes of what they searched. With respect, I’m still not happy with the majority decision, although it is to be preferred over the OCA’s decision, so that is progress of a sort.
> The Magic of Smart Phones
The very good news about the SCC decision in Fearon is that both the majority and the dissent recognize that a cellphone is simply not like a briefcase for the purposes of search and seizure law. Both decisions align with the concerns I expressed in my column from last year.
The majority, citing the reasoning in the recent SCC Vu case involving the search of a desktop computer, observes that it is “unrealistic to equate a cell phone with a briefcase,” given that cellphones “have immense storage capacity, may generate information about intimate details of a user’s interests, habits and identity without the knowledge or intent of the user, may retain information even after the user thinks it has been destroyed …” This is bang on.
The dissent echoes these thoughts, but then goes on to talk even more forcefully about the dynamics of “private digital devices,” stating that they “have revolutionized our daily lives,” they “record not only our core biographical information but our conversations, photos, browsing interests, purchase records, and leisure pursuits,” and they are “windows to our inner private lives.” Well said.
The dissent also eloquently enumerates the privacy risks of the new smart phone technology, arguing that “our law must evolve so that modern mobile devices do not become the telescreens of George Orwell’s 1984” … “because this new technology poses unique threats to people’s privacy.” This is pretty heady stuff, but also bang on.
Underpinning the dissent’s reasoning is a firm adherence to the importance of personal privacy: “An individual’s right to a private sphere is a hallmark of our free and democratic society”; “individuals should be free to choose the audiences with whom they share their ideas, habits, experiments and movements”; and “A private inner life is essential to the autonomous individual that forms the basis of a free and democratic society envisioned by the Charter.”
This is all very positive — both the majority and the dissent understand the sea change that has been precipitated by the digital revolution, and they both understand that the old ways of approaching search and seizure issues will need to be updated. So far so good.
> Of Locks and Keys
The second positive take-away from the SCC decision is that both the majority and dissent rejected the conclusion by the OCA that the accused had no reasonable expectation of privacy in his cellphone because it was unlocked when he was arrested. The majority simply concludes that cellphones – “locked or unlocked – engage significant privacy interests.”
The dissent is even more adamant on this point, and draws a number of parallels with a physical home, long considered the ultimate location deserving protection in the search and seizure jurisprudence.
The search of a house almost always requires a warrant, whatever the circumstances. And as for the accused not using a password to protect the phone, the dissent puts it thus (in a phraseology not dissimilar to my column last year): “An individual who leaves her front door unlocked does not forfeit her privacy interest in her home to the state; the same is true of her phone.”
The dissent puts this concept another way: “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.” Again, well said.
On these two points (a smart phone is not like a briefcase; an unlocked phone is still private), both the majority and the dissent do well. Then comes the tricky part.
> What Is a Cursory Search?
The last problem was the OCA’s rule that the police should be limited to a “cursory” search of the cellphone. I noted that “cursory” means “going rapidly over something,” and I argued that the term doesn’t really work for a smart phone, because it will simply be the case that once a police officer begins to navigate the screens and apps of the phone, they will have access to everything on the phone. It’s not like there’s a helpful “detailed index” to all the files and information that can direct an officer to a specific, relevant page, without scrolling through many others.
The dissent aligns with this position. Once again, the judges draw on the analogy to a house when they conclude that “it is not permissible to take a cursory walk inside a suspect’s home.” Sensibly, the dissent gets quite granular on this point, and argues the following in a manner that shows a good grasp of how smart phones (and modern communications technology) actually work in the real world:
“Moreover, it is very difficult – if not impossible – to perform a meaningfully constrained targeted or cursory inspection of a cell phone or other personal digital device. For example, recent communications could have been transmitted via a text message, an email, an instant messaging application, a social networking application, a conventional voice call or a ‘data’ voice call, a message board, through a shared calendar or cloud folder, a picture messaging application, or any number of websites. In short, a cursory inspection for recent communications will need to search a host of applications – the privacy infringement may be far from minimal and the inspection far from quick. Similarly, a cursory inspection of photos may involve any number of private and personal photographs of the individual – and of third parties.”
This analysis drives the dissent to conclude that there should be no warrantless searches of cellphones, even where they are related to an arrest, unless there are “exigent circumstances.” In turn, this means, for the dissent, only when there is a reasonable basis to suspect a search may prevent an imminent threat to safety, or there are reasonable grounds to believe that the imminent loss or destruction of evidence may be prevented by the warrantless search.
> Searches Great Circumspection
While the dissent’s “exigent circumstances” exception to warrantless smart phone searches is not perfect, it still provides a fairly bright-line test as to when the police need to obtain a warrant to search a cell phone — namely, just about always. Unfortunately, the majority’s approach is much more uncertain and unsatisfying.
The majority’s reasoning looks a lot like the appeal court’s “cursory search” approach, discussed above. For the police search to be truly “incidental” to the arrest, the majority believes that in practice police would be limited in what they can inspect.
As the judgment of the majority explains, “only recently sent or drafted emails, texts, photos and the call log may be examined as in most cases only those sorts of items will have the necessary link to the purposes for which prompt examination of the device is permitted. But these are not rules, and other searches may in some circumstances be justified. The test is whether the nature and extent of the search are tailored to the purpose for which the search may lawfully be conducted.”
The majority also makes it clear that, as with searches of a computer (as outlined in the Vu decision), police should not be able to scour a device “indiscriminately” — that is, this right to search a smart phone during arrest “does not give the police a license to rummage around the device at will.”
To place a practical limitation on this warrantless cellphone search power, the majority concludes its decision with a final requirement: that “officers must make detailed notes of what they have examined on the cell phone.” It will be interesting indeed to see how the average police officer on the street operationalizes this new test from the majority of the Supreme Court of Canada. I must say I’m skeptical about it working, as is the dissent, and I hope the majority decision in Fearon will not be the last word on warrantless searches of smart phones in Canada.
> A Final Caution
As you ponder, in light of the SCC decision in Fearon, your own smart phone practices (and those of your children!), keep in mind that even if this decision slows down the police from getting into the guts of your cellphone, it’s not that difficult nowadays for law enforcement to get a warrant (as they ultimately did even in the Fearon case); there is even a “telewarrant” service now in Ontario, making it quite convenient for police to get a warrant to go through your digital devices.
Therefore, remember (and teach your children) that anything you email, photograph, text or otherwise record, store or transmit on or through your smart phone — well, guess what, it will likely be there when the police come a-looking. Accordingly, we would all do well to remember, at all times, the following teaching from our parents decades ago (in the pre-Internet era): “If you have nothing nice to say about someone, don’t say anything at all.”
George Takach is a senior partner at McCarthy Tétrault LLP and the author of Computer Law.