OTTAWA — A major privacy rights decision will be handed down Thursday when the country’s top court rules if police need a search warrant before seizing information from the cellphones of arrested suspects.
The Supreme Court of Canada is to decide whether police acted lawfully in 2009 after they arrested Kevin Fearon, an armed robbery suspect, and scanned his unlocked cellphone.
Until now, lower Canadian courts have taken widely differing approaches to cellphone privacy. Some have allowed warrantless searches the same way officers pat down and seize other evidence on a suspect upon arrest; others have allowed cursory looks at a cellphone but no wholesale retrieval of the information on them without a warrant; with still others ruling warrantless searches are permissible only in emergency circumstances.
The Supreme Court of the United States ruled in June that police generally may not, without a warrant, search digital information on a cellphone seized from a person who’s been arrested.
In Fearon’s case, the Ontario Court of Appeal upheld a trial judge’s conclusion the warrantless search was constitutional and the evidence was admissible. It said Fearon’s expectation of privacy was reduced because his phone was not password-protected.
Fearon was one of three people arrested in connection with a robbery at gunpoint of a jewelry vendor who had been loading bags into her car at a flea market at Downsview. When he was arrested, the phone was found in his pocket during a pat-down search.
On his phone, police found photos of the gun, cash, and an incriminating draft text message that referred to jewelry and “we did it.” Police looked at again several times through the following days believing they were acting lawfully. It wasn’t until months after the arrest — upon hearing of another court ruling — that police sought a search warrant.
Fearon was convicted and sentenced to six years in jail. He has already served his time so the high court ruling will have no practical implication for him but will have broad implications for Canadians, said lawyer Sam Goldstein.
Goldstein said the case will “leapfrog Canadian search and seizure law into the 21st century and will be a touchstone for future digital privacy interests.”
In an interview, Goldstein said that based on recent Supreme Court rulings that upheld strong digital privacy rights over personal computers and individual online browsing histories, he expects the judges will rule police need a warrant to search a person’s cellphone.
Common-law powers of arrest generally allow police to conduct pat-down searches and seizures in the interest of officer safety or the need to preserve evidence. But Goldstein argues there’s no such crime-fighting imperative or time constraint for seizing digital information on cellphones — that prior judicial authorization is a must.
“When we’re talking about digital privacy rights, we’re not speaking about something confined to a three dimensional space . . . we’re not talking about briefcases and filing cabinets anymore,” said Goldstein.
“Cellphones are connected to the computer (and) are connected to the ‘cloud’ and they are fastidious record-keepers — they track our every movement. If you delete it, it can be undeleted.”
Goldstein said the photo evidence remained on Fearon’s cellphone months later when the police, following other court rulings, finally got a search warrant. So there was no need to rush.
Several intervenors backed Fearon’s legal arguments at the high court. The B.C. Civil Liberties Association argued that a warrant should always be required to search cellphones. In a statement Wednesday the association said mobile phones today contain “all manner of private information” including photos, videos, notes, calendar, financial information, contact lists, GPS location information, internet browsing history, as well as private communications such as text messages and email or phone call logs.
“Cellphone searches are the modern-day equivalent of a wiretap on a phone and a search of your computer files,” said the association, adding police should not be allowed to scan them without judicial authorization and the “heightened scrutiny required for the interception of private communications.”