Legal-Ease by Michael Evans
A recent Supreme Court of Canada decision, R. v. Fearon, has fundamentally changed the rights an accused has over private information contained on their cellular phone upon arrest.
The court ruled that police officers may search cellphones on arrest, provided that the search relates to the arrest, and the police keep detailed notes of the search.
Although the right to search cellphones is not justified on every arrest and the police are not permitted to conduct an overly broad search of the device, Justice Cromwell of the Supreme Court of Canada states that the police may search “recently sent or drafted emails, texts, photos, and the call log will generally be available, although other searches may, in some circumstances, be justified.”
There must also exist “a valid law enforcement” purpose such as: 1) protecting the police, the accused or the public; 2) in order to preserve evidence; or 3) to discover evidence such as locating additional suspects.
The judges who formed the minority vote with respect to this decision were of the view that such a search gives too much discretion to the police who are conducting the searches.
They were also concerned that the discretion was overly broad and should only take place in more urgent circumstances, for example, where the search may prevent an imminent threat to safety.
In its decision, the Court invited Parliament to legislate how and under what circumstances searches of cell phones can be conducted.
In this era of modern technology, cellphones contain the most private communication and information.
This decision opens up a broad discretion where a search could almost always be justified after the fact.
The judges in the minority have pointed out that the police may not be in the best position to determine whether law enforcement objectives outweigh the intrusion on privacy in the search of a digital device.
Michael Evans is an associate lawyer with RDM Lawyers LLP in Abbotsford. Comments or questions about this article can be sent to legalease@abbynews.com.