Canada and cell phone searches

Introduction:

The Supreme Court of Canada took on the issue of searches of cell phone conducted by police that are incidental to arrest R v Fearon. Mr. Fearon was arrested along with his accomplice for an armed jewelry robbery.  Soon after the incident the getaway vehicle was located and shortly afterward, they arrested Mr. Fearon searching his person in what is called a search incidental to arrest when they found a cell phone. On this cell phone they found incriminating evidence of a picture of a gun used in the heist and a draft text message that seemingly he wrote admitting to the robbery[1].  His attorney argued that the admittance of this evidence was an infringement on his right under s.8 of the Charter, but this was rejected by every court.  It is now understood, by the Supreme Court of Canda’s ruling, that given certain procedures that police must follow; any cell phone may be searched incidental to arrest.  This paper will examine the intrusive nature of cell phone searches from both perspectives of the majority and dissent in the case of R v Fearon. Then this paper will focus its attention on how the Court may have set a precedent that can lead to potential abuse.   This paper will highlight two arguments supporting the dissenting view from a legal article entitled, ‘Windows into Our Private lives’.  Finally, this paper will conclude that the Court has opened itself up to potentially valid criticisms for allowing cell phone searches that are truly incidental to arrest.   

Mr. Fearon’s Appeal to the Supreme Court was as a right given the dissenting view of the lower court of appeal.  In a close majority, the Supreme Court of Canda provided clarity to cell phone searches incidental to arrest where there was a lack consistency of prior court decisions.  As a right, s.8 of the Charter provides that “everyone has the right to be secure against unreasonable search or seizure”.  Mr. Fearon argued that by the police searching his cell phone without a warrant or reasonable and probable grounds they infringed his right to illegal search and seizer because he had a reasonable expectation of privacy.   As such he argued that the evidence ought to have thus been excluded under section 24(2) of the Charter, where the power of the Court to exclude illegally obtained evidence derives.  Once an infringement upon an individual’s rights is determined by the court, then a separate test analysis required called the Grant test as to whether to exclude such evidence[2].  “The trial judge found no breach [of Mr. Fearon’s s.8 rights] but conducted a s. 24(2) analysis in the event she erred in that respect.  Her findings of fact in this regard, like her other findings of fact, [were] entitled to deference on appeal”[3].  According to Pierre-Luc Deziel, “the Court has been struggling with this in the past while at the same time finding the extent of the intrusion is also minimal if conducted truly incidental of arrest”[4].  It is this idea that because a cell phone search happens at the time of arrest for some good reason, that raises questions of how it makes it more of a reasonable intrusion into a person’s constitutionally protected right to an expectation privacy.

This non-intrusive search incidental arrest was created in common law.   In R v Caslake [1998] and R v Golden [2001], it was established, “that the lawfulness of these warrantless searches hinges on a much lower standard of what the police were looking for and why”[5], that their must be a link between the location and purpose of the search[6].  So, in this sense the search of a person must truly be incidental to arrest and less intrusive in a manner to be constitutionally valid.  It must be “conducted in pursuit of a “valid purpose connected to the arrest”, as required by Caslake, at para. 19”[7] .  The requirement is that upon arrest without any need for reasonable or probable grounds a police officer has a common law right to search an arrested individual in the course of their duties.  Accordingly, the Supreme Court in Hunter v. Southam that a “warrantless searches are prima facie considered abusive and therefore unconstitutional. 120”[8].   According to the majority of the Supreme Court in Fearon, this power of the police “to search incidental to arrest is extraordinary in that it permits reasonable searches when the police have neither a warrant nor reasonable and probable grounds”[9].  As far as the intrusive nature of searches incidental to arrest, the Court stated that “the exercise of this extraordinary power has been considered in general to meet constitutional muster reflects the important law enforcement objectives”[10], see also see reference to R v Stillman 1997.  This type of search was reiterated by this Court as “not a standard of reasonable and probable grounds, but simply a requirement that there be some reasonable basis for doing what the police did”[11].  According to the Court, the police must have “a valid reason based on a law enforcement purpose” [12] and comply with all four factors or ‘safeguards’ outline by the Court for the search of a cell phone to be constitutional[13].  The main question for the Court in the ‘outset for this appeal was whether the scope of this common law power to search cell phones incidental to arrest is authorized by a reasonable law and if it was conducted reasonably to place it within the meaning of s.8 of the Charter’[14].

The significance of this case is that the Court struck a balance and clarity to the search of cell phones when found incidental to arrest, including other electronic devises in relation to s.8 of the Charter.  The Court found it necessary to strike a “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”.  The Court characterized what types of searches would constitute to be intrusive and thus unreasonable for the purposes of a s.8 infringement if it was conducted incidental to arrest.  According to the Court,

“Seizure of bodily substances “invades an area of personal privacy essential to the maintenance of . . . human dignity” and is “much more serious” than an intrusion into the suspect’s office or home: at para. 42, quoting with approval R. v. Dyment, [1988] 2 S.C.R. 417, at p. 432; see also R. v. Pohoretsky, [1987] 1 S.C.R. 945, at p. 949”[15].

Further, according to “the Court’s reasoning on this point was that (similarly) since strip searches are inherently prejudicial to human dignity and represent a “very direct interference with personal privacy”[16], that a cell phone search is a minimal intrusion and as such is not an affront to human dignity in a similar fashion.  But could there potentially be information stored on a cell that would raise these issues of privacy and dignity to the same degree of intrusion as the seizing of body fluids or strip searches?   The issue up for debate is whether these four safeguards make the search constitutionally permissible: ‘that there be three factors which define a valid law enforcement purpose which the police can place their reasons for a search on, that the nature and the extent of the search are tailored to the purpose of the search, and that police take detail notes’[17].  This paper is too short to conduct a ‘deep dive’ on these safeguards as to their efficacy and efficiency; but it will note that the safeguards imply that some tailored searches be performed.  As such this paper will focus of the issue of privacy and s.8 of the Charter as it relates to human dignity.  

The dissent’s divergence related primarily to this concern of privacy as it relates to human dignity[18].  According to Justice Karakatsanis, “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”[19]. So, even with the restrictions in place by the majority that police must take careful notes outlining their searches of a cell phone, it does not displace the fact that a cell phone may contain information that carries with it a common understanding of high expectation privacy.  Justice Karakatsanis makes the comparison of a cell phone search that may be, “even more threatening to our privacy than the search of our homes”[20].  It was the general nature of a cell phone which concerned the dissent, that it could be used to store such information that it arguably warrants constitutional protections under s.8 that otherwise would be an affront to a person’s dignity[21].  In reading both the majority and dissenting opinions of this case, “the question of whether or not cell phone searches constituted an affront to hu­man dignity received divergent answers in the jurisprudence”[22].  Further, “it does not follow that searches in the informational context cannot represent highly intrusive and humiliating practices”[23].  Common sense would dictate that because a cell phone can potentially carry within them such private information that individual citizens would expect a higher level of an expectation of privacy[24].  To then expose that information would be an affront to human dignity and thus, as one would think, should be afforded constitutional protection by this logic.  But it is equally arguable that if a person is carrying around pictures of them committing a crime, then their expectation of any privacy is lower as opposed to hiding them in their house.

Again, from a normative perspective, despite safeguards placed by the Court, the police can stumble upon information that may be held both subjectively and objectively private.  A search by its nature is a fishing expedition that is presumptively intrusive, and individuals have a constitutional protection to be presumed innocent until proven guilty.  The Court noted that this power to search incidental to arrest “the power to search incident to arrest not only permits searches without a warrant but does so in circumstances in which the grounds to obtain a warrant do not exist”[25]. Added safeguards including proper note taking and good faith on the part of the police; will not prevent truly private information unrelated to an arrest from potentially being exposed.  According to Mr.  Pierre-Luc, “the idea that the search would be tailored implied a certain amount of existing knowledge about the phone itself.   It seems to me that the risk that the officer will go beyond the limits of a perfectly tailored search is more than significant”[26].  As it was in Fearon the police are saying that they merely stumbled upon the pictures of the gun and the draft text messages.  What Pierre-Luc is challenging is that the police really did not know what they would find thus a valid reason can be easily made up to meet these four factors outlined by the Court. He is suggesting that this is truly a fishing expedition’ regardless of what could be potentially excuses made by the police.   As an alternative, what is suggested later in Pierre-Luc’s argument is that “the majority fails to address in Fearon is the fact that the best way to protect the integrity of evidence found in the cell phone is to remove the battery immediately after the seizure and to hand over the device to a tech­nological expert in data extraction. As it has been pointed out in Cater 130 and in Liew 131, conducting cursory searches increases the risk of damaging or destroying evidence stored in the phone”[27].  As the Charter is applicable to police searches incidental to arrest, see R v Golden [2001][28],  it would seem significant for the Court to therefore acknowledge that there is a potential for misuse that an officer’s notes may be tailored to meet constitutional muster as Pierre-Luc suggests in his paper.  The Court in Fearon, as it was in R v Caslake [1998], noted the importance of the potential of timely gathering of evidence as key to the purpose of the common law power in the first place.  Arguably, the idea of favoring a more controlled means of extracting cell phone information may sacrifice this concept of urgency.  But, normatively speaking, their may be valid concerns of a police officer skimming over unrelated and private information which may be stored on a cell phone.  This even though they are only supposed to be limited and cursory could potentially lead to misuse as Peirre suggests. What is clear is that these and more conceptions of privacy and police techniques raise issues that need to be explored further as they relate to warrantless cell phone searches.

In conclusion, while the Court has brought clarity to cell phone searches completed incidental to arrest, it arguably may have done so at a high cost to privacy and our conception of democracy.  It may simply be that Courts divide stems from broad considerations of issues of privacy and dignity. The question then is to ask whether the Court has properly attached certain safeguards or of the four factors, in consideration of this joining in harmony of common law with the Charter regarding cell phone searches incidental to arrest.  Thes requirements were to ensure that the searches of cell phones remain reasonable and thus justified under s. 8 of the Charter.   As was stated in R v Caslake [1998] ‘if the police are purposefully looking through a cell phone to find evidence, then does their exist a prospect that is reasonable for finding evidence of the crime the person is arrested for’.   Maybe it is truly the Courts attempt to mask a ‘fishing expedition’ with this projection of a timely minimal dignified search. Such criticisms may only be reconcilable through legislation; with the peoples solid understanding of what is at stake.  In the dissenting Court opinion these two joining concerns of privacy and a person’s dignity could not be ignored in relation to the normative nature of what society stores or may store on a cell phone.  It is highly probable that the majority may have failed in thinking that by the procedures police are to follow through note taking etc., supporting the common law requirement of a ‘valid reason’, will prevent an undermining of democratic values which were intended to be enshrined and protected by our conceptions of constitutional democracy.     Are bigger doors opening in the future?

[1] R v Fearon 2014

[2] It is suspect whether once the Court is fixated on maintaining the Constitutional validity of a search incidental to arrest as to whether under a Grant analysis, they can truly look at the evidence from a neutral standpoint as was outlined in Grant. And can a Court in finding no infringement truly be shown to have been neutral in their analysis by finding no infringement then employing a grant test to see if they were right. The grant test was not designed to work backwards as a test for an infringement on s 8; only on the exclusion of evidence. 

[3] Ibid, para 90

[4] Pierre-Luc Déziel, “Windows to our Inner Private Lives”: Cell Phones, Informational Privacy and the Power to Search Incident to Arrest in Canada, 2015 20-1 Lex Electronica 51, 2015 CanLIIDocs 5209, p-82

[5] 2015 R v Fearon Case Commentary Western Journal of Legal Studies Editorial Board Western University, P 2

[6] Ibid, P 2

[7] R v Fearon 2014, line 29

[8] Pierre-Luc Déziel, “Windows to our Inner Private Lives”: Cell Phones, Informational Privacy and the Power to Search Incident to Arrest in Canada, 2015 20-1 Lex Electronica 51, 2015 CanLIIDocs 5209. P 72

[9] 2015 R v Fearon Case Commentary Western Journal of Legal Studies Editorial Board Western University, p 3

[10] Ibid P 3

[11] R v Fearon 2014,. Para 22

[12] Ibid, para 83

[13] Ibid., Para 14 where Court stated that by these safeguards it modified the common law as searches incidental to arrest were already constitutionally valid

[14] See Ibid., para 82, 83 and 84 for clarification on these four safeguards

[15] Pierre-Luc Déziel, “Windows to our Inner Private Lives”: Cell Phones, Informational Privacy and the Power to Search Incident to Arrest in Canada, 2015 20-1 Lex Electronica 51, 2015 CanLIIDocs 5209. P 72

[16] Ibid, para 83

[17] R v Fearon para 83

[18] Ibid para 14 balance between police objectives and dignity

[19] Ibid., para 132

[20] Ibid, para 134

[21][21][21] Ibid para 19 always an issue of maintaining a person dignity

[22] Pierre-Luc Déziel, “Windows to our Inner Private Lives”: Cell Phones, Informational Privacy and the Power to Search Incident to Arrest in Canada, 2015 20-1 Lex Electronica 51, 2015 CanLIIDocs 5209. P 83

[23] Ibid, p 84

[24] United States v. Smith (S.D.N.Y. May 11, 2023), a district court judge in New York made history by being the first court to rule that a warrant is required for a cell phone search at the border, “absent exigent circumstances”.

[25] R v Fearon., para 16

[26] Ibid, p 84

[27] Ibid p 85

[28] Peter Hogg Constitutional law of Canda, Thomson Reuters 2023. p 992