The division of the Supreme Court in the Telus decision (discussed in the last issue of PrivaTips) reflects the challenges judges face in adapting the law to new technologies and the various uses to which they are put. This is something we have seen in R. v Cole, 2012 SCC 53, where a teacher had a legitimate (if diminished) expectation of privacy in the school-owned laptop on which he stored child porn; and in R. v Fearon, 2013 ONCA 106, the topic of this article, where a warrantless search of a mobile phone with no password protection was upheld as a valid incident of police powers of arrest.

The Fearon ruling from the Ontario Court of Appeal found that, if you are under arrest, it is lawful for police to rummage through your cellphone, including reading your text messages and looking at your contacts, as long as the phone isn’t protected by a password.

The ruling stems from an armed robbery conviction in 2010. Kevin Fearon was arrested for armed robbery and, upon his arrest, police frisked him and found a cellphone. Upon looking through the phone, police found “photographs of a gun and cash as well as an incriminating text message.” Police also looked at recent calls and contacts.

When the case went to trial though, defence lawyers hoped to exclude the evidence gleaned from Fearon’s cellphone by arguing that looking through his phone without a warrant was a breach of his section 8 Charter right to be free from unreasonable search and seizure.

Fearon argued that his cellphone did not fall under the umbrella of “search incident to arrest”, while the prosecution argued that such searches were normal and to be expected after someone has been arrested.

Cellphones are interesting ground for police and the public. Most people treat cellphones as deeply personal tools. They contain a vast trove of sensitive information, family photos, private emails, text messages, banking details and information used to access an array of on-line services. Understandably, this decision thus came as quite a shock to the general public.

In some cases however, police are allowed to perform searches of a person as soon as they have been arrested to look for, and collect, evidence. The common law doctrine of “search incident to arrest” gives the police broad and general powers to search a cellphone, however, they must have some reason related to the arrest for conducting the search at the time the search is carried out – they do not need reasonable and probable grounds.

The Court of Appeal reasoned that a warrantless search of a cell phone, incidental to arrest, must be limited to a “cursory” examination, presumably limited to a look through the contents to ascertain if it contains evidence relevant to the offence for which the individual has been arrested. A detailed search, or following links to social media sites would require a warrant.

Both the trial judge and the Court of Appeal determined that the police were within their rights to conduct a cursory search of the phone at the time of arresting Fearon for armed robbery. That the search included an electronic device and not paper-and-ink found in the suspect’s pocket is irrelevant.

By focusing on whether the phone had a password, this judgment attempts to test the limits of one’s reasonable expectation of privacy. Essentially, the courts are saying that if your phone is protected by a password, you expect privacy, and thus a warrant must be obtained to break the password or search the contents of the password-protected phone. However, if a phone is found and any member of the public could view its contents, so can police.

Fearon raises many questions, such as:  When has a ‘cursory inspection’ gone too far? What happens when a person is arrested while using a cellphone and the password is not engaged? Do police have to ask if the phone is password-protected before commencing a search without  a warrant?

So far, the Supreme Court of Canada has carved out two exceptions to the common law power of search incident to arrest: police seizures of suspects’ bodily samples and searches of their homes.

In Fearon, the Crown, supported by the intervener Public Prosecution Service of Canada, argued that the creation of a cellphone exception was not justified, since the personal information in cellphones is no different than what is carried in briefcases, purses and other “containers.”

Fearon’s counsel, supported by the intervener Canadian Criminal Lawyers’ Association, urged that except in exigent circumstances, police are restricted to a cursory examination of a cellphone after an arrest for the limited purpose of determining whether the phone contains evidence of the alleged crime. But no further examination is permissible unless a search warrant is obtained.

“The problem I have with appellant’s position and, in particular, the position of the CCLA, is that it would appear to mark a significant departure from the existing state of the law…” Justice Armstrong wrote. “It may be that some future case will produce a factual matrix that will lead the court to carve out a cell phone exception to the law as articulated in Caslake. This is not that case. To put it in the modern vernacular: ‘If it ain’t broke, don’t fix it.’”