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The Supreme Court of Canada addressed the question of whether police can search your cellphone without a warrant upon arrest in R v Fearon (2014). They ruled that after a lawful arrest, the police can conduct a limited search of a cellphone and similar devices, provided certain criteria are met. They indicated that searching a cellphone upon arrest pertains to section 8 of the Charter of Rights and Freedoms.
This section of the Charter is about the right to be secure against unreasonable search or seizure. In cases related to section 8, it's noted that the Supreme Court of Canada aims to strike a balance. This balance is between the need for the police to investigate crime and the public's right to be left alone by the state. The court has clarified that only unreasonable searches or seizures are prohibited. However, reasonable ones are permissible under the law.
Following this, the Supreme Court of Canada in R v Collins elucidated that a search or seizure is deemed reasonable for the purposes of section 8 of the Charter when it meets three criteria. Firstly, the search should be authorized by law. Secondly, it should be guided by a law that itself is reasonable. Lastly, the actual execution of the search should be done in a reasonable manner.
A search under section 8 is only conducted if there is a reasonable expectation of privacy in the item being searched. For example, the Supreme Court of Canada has asserted in R v Patrick that there is no reasonable expectation of privacy for abandoned items.
The Supreme Court of Canada, in R v Vu, explained the position of cellphones in this context. Given their sophistication and storage capacity, cellphones attract a high reasonable expectation of privacy. They can reveal intimate information about a person's lifestyle choices. The Court equates a smartphone to the functional equivalent of a computer in terms of privacy.
When an individual is arrested, police have a common law prerogative to search the arrestee incident to arrest without a warrant. The reasons for this are diverse: it could be for the protection of the officer, the accused, or the public, the preservation of evidence, or to discover additional evidence. However, four conditions need to be fulfilled for the search of a cellphone or similar device incidental to arrest to comply with section 8 of the Charter.
The first condition is the legitimacy of the arrest. The second stipulates the search must be genuinely incidental to the arrest. These searches should be done swiftly after an arrest to serve law enforcement purposes effectively. These purposes could be to protect the police, the accused or the public, to preserve evidence, or to discover evidence. The latter is applicable only if the investigation would be significantly compromised without the ability to conduct the search promptly.
The third condition requires the search's nature and extent to be aligned with its purpose. Typically, access would only be granted to items such as recently sent or drafted emails, texts, photos, and the call log. However, other searches could be justified in some contexts.
Lastly, the police should maintain comprehensive notes about what they examined on the device and how they did it. These notes should generally include details like the applications searched, and the search's extent, time, purpose, and duration. These notes are crucial for effective after-the-fact judicial review.
