Privacy rights: Police can search unprotected cellphone without warrant, appeal court rules

If you want to make sure police don't search your phone without a warrant, ensure it's password protected, the ruling suggests.

By: Peter Small

The Court of Appeal for Ontario has ruled that if a cellphone is not password-protected, police making an arrest can search it without a warrant.

On Wednesday, Justice Robert Armstrong, supported by two other judges, dismissed an appeal of an armed robbery conviction by Kevin Fearon, who agued his rights against unreasonable search had been breached.

After his arrest on suspicion of taking part in a Downsview jewellery heist in 2009, a police officer conducted a pat-down search and found a cellphone in his pocket.

After manipulating the phone, police officers found it contained photographs of a gun and cash as well as an incriminating text message.

The police officers involved believed they had a right to inspect the phone without a warrant.

Fearon challenged the warrantless search of his cellphone, which was not protected by a password, claiming it breached his Charter rights.

But the court ruled Wednesday his rights were not breached. Had the phone been password-protected or otherwise locked to outside users, however, police would have needed a search warrant to examine its contents.

“While I appreciate the highly personal and sensitive nature of the contents of a cellphone and the high expectation of privacy that they may attract, I am of the view that it is difficult to generalize and create an exception based on the facts of this case,” Armstrong wrote.

The case generated much interest in the legal community. The Canadian Civil Liberties Association intervened, arguing phones should not be searched at all after an arrest, absent urgent circumstances.

The Criminal Lawyers’ Association of Ontario took a similar position but would permit the police to make a cursory search of the phone to determine if it contained relevant evidence.

Susan Chapman, who argued on behalf of the Criminal Lawyers’ Association, said the court didn’t consider the seriously private nature of cellphones. “Text messaging is basically the equivalent of a modern wire tap. The court really understated the expectation of privacy that Canadians have in their cellphones,” she said.

For Chapman, the verdict was a disappointment. “This is a very insidious practice. There has to be some limits on the ability of police access.”

Fearon’s lawyer, Sam Goldstein, argued the court should carve out a cellphone exception to the legal doctrine that allows searches incidental to arrest. Phones are more like digital portals than briefcases, and the expectations of privacy should be higher, he has said.

Goldstein said Wednesday the lesson to be taken from this ruling is to make sure your phone is password-protected if you want to prevent police from searching it without a warrant.

Goldstein is considering seeking leave to appeal from the Supreme Court of Canada, he said.