A recent decision has reaffirmed existing rules around when police can and cannot search your cell phone. In Canada, the right to privacy is enshrined in the Charter. Section 8 gives people the right to be secure from “unreasonable search or seizure”. It does not offer complete protection, however, and violations of this right are permitted in certain circumstances. In order to decide when it is acceptable to invade people’s privacy, s. 8 has to be balanced against factors such as the reasons for the violation, how invasive it is and the scope of the intrusion. Courts may decide a violation of s. 8 is acceptable if there is a valid enough reason, such as if someone is suspected of a serious crime.
Warrantless search of cell phone
Generally, police need to obtain a warrant from a court before they can search your property, including the content of your phone. If you are arrested, however, they are allowed to search your cell phone without a warrant in order to collect evidence related to the arrest. A Supreme Court of Canada decision in 2014 established four conditions that must be met in order for a search of a cell phone during an arrest to comply with s. 8.[pullquote]”the police must fulfill requirements in order to lawfully obtain evidence from a person’s phone”[/pullquote]
- The arrest must be lawful.
- The search must be truly incidental to the arrest. This requirement should be strictly applied to permit searches that must be done promptly upon arrest in order to effectively serve the law enforcement purposes. In this context, those purposes are protecting the police, the accused or the public; preserving evidence; and, if the investigation will be stymied or significantly hampered absent the ability to promptly conduct the search, discovering evidence.
- The nature and the extent of the search must be tailored to its purpose. In practice, this will mean that only recently sent or drafted emails, texts, photos and the call log will, generally, be available, although other searches may, in some circumstances, be justified.
- The police must take detailed notes of what they have examined on the device and how they examined it.
In effect, these conditions mean that a warrantless search of your cell phone must be carried out at the time of your arrest and the search must be limited to information related to the reasons for your arrest.
Search warrants and cell phone content
Police routinely use warrants to conduct searches of people’s property, such as their car or home, but would such a warrant extend to the contents of a phone discovered inside the property? A warrant might include a cell phone on a list of things police are looking for within a property. The question of whether this permits the police to not only seize the phone but search its contents as well has been a legal grey area. A recent decision, however, has clarified the issue.
At BC Supreme Court, a hearing was heard within the trial of a man accused of a double murder. During the investigation, police obtained a warrant for the accused’s home and to search for items including the suspect’s cell phone and “Computer(s) and electronic devices capable of accessing the internet”. The accused argued that the search warrant issued for his residence did not provide the “necessary pre-authorization” to actually search the contents of his cell phone it was, therefore, a breach of his s. 8 Charter rights. If it was a breach, the accused would be able to apply to have the evidence excluded from his murder trial.
The defence put forward two cases to support its position, R. v. Wong and R. v. Law. In both cases, it was found that warrants issued to search people’s properties did not contain specific pre-authorization to search computers.
In Wong, the accused was charged with various offences in connection with the discovery of a methamphetamine lab and a loaded firearm. Police conducting a search of the accused’s property seized and searched computers and other electronic devices listed on a warrant. The Court held that specific pre-authorization was necessary to safeguard against “impermissibly vague” descriptions of items to be searched.
In Law, the Court held that it was not sufficient to infer pre-authorization to search the contents of the seized electronic devices from the list of items to be searched on a warrant.
The Crown argued that the case R. v. Ballendine superseded these decisions. In Ballendine, police had a warrant to search a home and its contents including computers for child pornography. The Court held that a second warrant was not needed to search the computers because the seizure of a computer was akin to the seizure of documents inside a filing cabinet.
The BC Supreme Court judge ruled in favour of the defence’s argument, stating: “I am satisfied that it would be in the interests of justice in this particular case to follow the decisions in Wong and Law.”
The judge found that the warrant identifying the accused’s cell phone as a “thing” to be seized did not provide the police with the necessary pre-authorization to search its contents.
The effect of this decision will likely mean that if the police want to search a person’s house and the contents of their phone, they will need to obtain a secondary warrant that specifically authorizes the search of the phone.
What should I do if the police have searched my phone?
As we have seen that the police must fulfill requirements in order to lawfully obtain evidence from a person’s phone. If that search is deemed a breach of s.8 or the manner in which the search was conducted failed to meet the necessary requirements, that evidence cannot be used in court.
As experienced Criminal Lawyers, we know when to look for any mistakes police might have made in your arrest and search of your phone. If you need help, call us now for a free consultation at 604-685-8889.