Canada, Cellphones

The View From Up North: Supreme Court Of Canada Condones Cellphone Searches

Where would you rather be charged with a crime, Canada or North Korea? The more we chisel away at the Canadian Charter of Rights and Freedoms, the less clear the answer becomes.

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We law-abiding citizens don’t mind it when the police bust into a drug dealer’s house, but we’d certainly get upset if the police knocked on the door to our own law-abiding houses. We don’t mind when the cops rifle through a criminal’s car, but heaven forbid they search our pristine cars.

Who cares about the “criminals,” right? Don’t do criminal stuff and the police won’t need to dig through the drug-filled gym bag in your trunk.

We should all care. We should all care deeply. Rights protect all or they protect none. Put differently, where would you rather be accused of a crime, Canada or North Korea?

Canada has a Charter of Rights and Freedoms that guarantees every person the right to be protected from unreasonable search or seizure.

North Korea has a basketball-loving human rights violation named Kim Jong Un.

We have courts to enforce the Charter and to ensure our rights are protected.

In North Korea, a short dude with an unnatural obsession over lanky athletes can execute you without a trial.

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Every time our courts chip away at the Charter, the gap between our free society and the man who loves Dennis Rodman narrows.

Do you have anything naughty or, heaven forbid, criminal in your cell phone? Maybe some pictures taken in a candid moment; pictures taken for your eyes only. Perhaps you have emails where you share intensely private thoughts with someone else? Or maybe your cell phone can directly access a virtual dropbox where you store sensitive documents? If you do, it’s all subject to police review if you get arrested.

Once again, the chorus: Who cares? I’m not going to get arrested.

Last week, a narrow majority (4-3) of the Supreme Court of Canada ruled in R. v. Fearon the police can dig through your cellphone without a warrant as long as it’s incidental to the arrest. Our friendly majority attempted to add some rules around the process:

1. The arrest has to be lawful.

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2. The search has to be connected to the arrest. In other words, the police must have a reason beyond, “Hey, I found a cellphone” to dig into the mass of private data on your phone. There are essentially three valid reasons: (i) protecting the police, the accused, or the public; (ii) preserving evidence; or (iii) the discovering of new evidence or suspects that will be hampered if the police can’t promptly conduct the search (i.e., the evidence may disappear if the police wait to get a warrant).

3. The nature and the extent of the search must be tailored to the purpose of the search; and

4. The police must take detailed notes of what they have examined on the device and how it was searched.

Nothing vague about that, right? The police will clearly understand what the SCC intends.

Let’s try to put it in plainer words. If you arrest Citizen A and you have a reasonable belief that searching Citizen A’s cellphone is necessary for the immediate protection of the public, preservation of evidence, or to discover new evidence, you can take a peek through the cellphone. But, the majority says, you have to limit it to something reasonable (whatever that means). You can’t look at everything. Perhaps only the last few days’ worth of texts, videos, pictures, etc.

That’s an open ticket for the police to search every single cellphone, right? Okay, let’s give the police the benefit of the doubt. They won’t search every single cellphone. With respect to other types of invasive searches, in all but the most pressing situations the police need a warrant, for example, to search your house. The police must appear before a judge and provide reasonable and probable cause (a relatively high standard) before the judge will approve a warrant.

That’s how we roll in a democratic society. We recognize society needs some leeway to protect all citizens. We recognize our individual rights are not inalienable — just damn important. In certain circumstances the overall goal of protecting the public trumps individual rights. But, in highly invasive intrusions, such as taking bodily fluids, a judge gets to decide whether the police can make you an unwilling blood donor. The judge is charged with balancing society’s goals against individual rights.

Your cellphone? That’s a completely different story thanks to Faeron. Now the police, not a judge, get greater leeway to decide whether they have enough justification to search your cellphone upon arrest. We all know the police’s first priority is to preserve your rights and freedoms.

Yeah, but the police will follow the SCC’s rules and only check the most recent emails, texts, photos, videos, etc.

Yeah, okay. What exactly does that mean? Two days? Five days? If the SCC is going to give guidance, it should at least give clear guidance.

Yeah, but if they don’t follow the rules, the evidence won’t be admissible.

Who cares? The majority of time the police aren’t going to find anything useful on the cellphone. Thus, whether the search was “legal” or not will never be an issue at trial.

But, can’t we sue the police for violating our Charter rights?

I guess. But out of one hundred violated citizens, how many do you think will actually sue the police? Additionally, the most important thing about lawsuits is you need damages. Therefore, what’s your claim? The police looked at videos of my spouse and me knocking slippers in violation of my Charter rights, so pay me a million bucks. Ain’t gonna happen. Thus, if you’re so angry you want to go down the path, it will cost you a fortune in legal fees with very little financial upside. It will take years to finish, cause you many sleepless nights and, most importantly, you may have to disclose some or all of your cellphone’s contents during the lawsuit. Here you go, Your Honor. Yep, that’s my spouse.

Madam Justice Karakatsanis wrote a dissenting opinion in Fearon. With all due respect to the majority, she got it right. She said:

[T]he cell phone acts like a key or portal which can allow the user to access the full treasure trove of records and files that the owner has generated or used on any number of devices. It is not just the device itself and the information it has generated, but the gamut of (often intensely) personal data accessible via the device that gives rise to the significant and unique privacy interests in digital devices.

Justice K conceded the current law surrounding exigent circumstances (e.g., imminent threat to public safety) would already allow the police to search a cellphone without a warrant. Absent a reasonable belief, however, that checking a cellphone is necessary, for example, to protect the public from imminent harm, the correct approach is to seek out a warrant. Let a judge decide whether the police really need to dig through the cellphone. That’s how we do it in a democratic society. Justice K also notes in almost all pressing circumstances the police can obtain a telewarrant very quickly.

A better solution, right? If it’s absolutely life-saving, you can search the cellphone. If it’s not, go get a warrant. Let a judge decide. That’s the high standard we should hold the police to.

To be fair, Faeron is only a small chip in the Charter. But a chip here and a chip there adds up. I return to the question: where would you rather be charged with a crime, Canada or North Korea? The more we chisel away at the Charter, the less clear the answer becomes.

That’s the View From Up North. Have an arrest-free week.

Steve Dykstra is a Canadian-trained lawyer and legal recruiter. He is the President of Keybridge Legal Recruiting, a boutique recruitment firm that places lawyers in law firms and in-house roles throughout North America. You can contact Steve at steve@keybridgerecruiting.com. You can also read his blog at stevendykstra.wordpress.com, follow him on Twitter (@IMRecruitR), or connect on LinkedIn (ca.linkedin.com/in/stevedykstra/).

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