Supreme Court of Canada Upholds Cellphone Search at Arrest

A 4-3 decision by the country's highest court said the evidence Toronto police found on a robbery suspect's phone, including a photo of a handgun and a draft text message which read in part, "We did it," should not be excluded.

The Supreme Court of Canada has ruled 4-3 in an important privacy case that law enforcement personnel may search the cellphone of someone they have arrested, without needing a search warrant. The 4-3 decision issued Dec. 11 dismisses the appeal of Kevin Fearon, who was convicted of participating in a 2009 robbery after Toronto police searched his cellphone. Fearon challenged the search.

Police who arrested Fearon found a photo of a handgun on his phone and a draft text message which read in part, "We did it." The robbery had been carried out by two men, one of whom carried a handgun, Judge Thomas Cromwell wrote in the majority opinion.

The opinion says Fearon's rights were violated by the search because the police did not take adequate notes detailing precisely what was searched, how, and why, but says despite that, the evidence should not be excluded:

"Although any search of any cell phone has the potential to be a very significant invasion of a person’s informational privacy interests, the invasion of F's privacy was not particularly grave," it states. "Further, as he did not challenge the warrant that was subsequently issued for the comprehensive search of the cell phone, his privacy interests were going to be impacted and the particular breach did not significantly change the nature of that impact. . . . In addition, the police fully disclosed the earlier searches when they decided to obtain the warrant to search the cell phone. While the police should, when faced with real uncertainty, choose a course of action that is more respectful of the accused's potential privacy rights, an honest mistake, reasonably made, is not state misconduct that requires the exclusion of evidence. Society's interest in the adjudication of the case on its merits also favours admission: the evidence is cogent and reliable, and its exclusion would undermine the truth seeking function of the justice system."

The three dissenting judges argued a warrantless cellphone search should be allowed only in exigent circumstances, which they defined as: "when (1) there is a reasonable basis to suspect a search may prevent an imminent threat to safety or (2) there are reasonable grounds to believe that the imminent destruction of evidence can be prevented by a warrantless search."

"Tailoring the scope of the common law power to search incident to arrest does not adequately protect the reasonable expectations of privacy in personal digital devices. The majority's proposed modifications generate problems of impracticality, police uncertainty, and increased after-the-fact litigation. And while detailed note-taking may be desirable, it may prove to be an impractical requirement, and it is not an adequate remedy to what would be an extraordinary search power," the dissenting opinion states. "Fundamentally, the police are not in the best position to determine whether the law enforcement objectives clearly outweigh the potentially significant intrusion on privacy in the search of a digital device, and, if they are wrong, the subsequent exclusion of the evidence will not remedy the initial privacy violation." It argues that the searches of Fearon's phone "were not justified and unreasonably infringed his privacy," and that the facts of his case "fall far below either standard for exigency."

Download Center

  • Safety Metrics Guide

    Is your company leveraging its safety data and analytics to maintain a safe workplace? With so much data available, where do you start? This downloadable guide will give you insight on helpful key performance indicators (KPIs) you should track for your safety program.

  • Job Hazard Analysis Guide

    This guide includes details on how to conduct a thorough Job Hazard Analysis, and it's based directly on an OSHA publication for conducting JHAs. Learn how to identify potential hazards associated with each task of a job and set controls to mitigate hazard risks.

  • A Guide to Practicing “New Safety”

    Learn from safety professionals from around the world as they share their perspectives on various “new views” of safety, including Safety Differently, Safety-II, No Safety, Human and Organizational Performance (HOP), Resilience Engineering, and more in this helpful guide.

  • Lone Worker Safety Guide

    As organizations digitalize and remote operations become more commonplace, the number of lone workers is on the rise. These employees are at increased risk for unaddressed workplace accidents or emergencies. This guide was created to help employers better understand common lone worker risks and solutions for lone worker risk mitigation and incident prevention.

  • EHS Software Buyer's Guide

    Learn the keys to staying organized, staying sharp, and staying one step ahead on all things safety. This buyer’s guide is designed for you to use in your search for the safety management solution that best suits your company’s needs.

  • Vector Solutions

Featured Whitepaper

OH&S Digital Edition

  • OHS Magazine Digital Edition - July August 2022

    July / August 2022

    Featuring:

    • CONFINED SPACES
      Specific PPE is Needed for Entry and Exit
    • HAZARD COMMUNICATION
      Three Quick Steps to Better HazCom Training
    • GAS DETECTION
      Building a Chemical Emergency Toolkit
    • RESPIRATORY PROTECTION
      The Last Line of Defense
    View This Issue