Adam Weisberg

Criminal Law Toronto: Your Rights in a Digital Age

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Cell phones carry a staggering amount of intimate information, more than any other device in our possession. The convenience of having web browsing capability, email, texting, messaging apps, camera, and a telephone all in one place has centralized the storage of this information.

Passcodes and fingerprint technology are frequently used against the average intrusive stranger, but what happens when that stranger is a police service? Under section 8 of the Canadian Charter of Rights and Freedoms, “Everyone has the right to be secure against unreasonable search or seizure” – but does this included search and seizures of devices that are an electronic extension of our persons?

This issue has seen an increase in attention commensurate with the advances of technology.  Criminal cases involving search and seizure have been at the forefront of delineating this new boundary.  As technology evolves so too must case law, and this has led to some interesting legal challenges.

In the seminal case of R v Fearon [2014], the Supreme Court of Canada set an important precedent allowing the police to search cell phones without a warrant incident to arrest.  Kevin Fearon was charged and convicted of armed robbery after robbing a jewellery store and fleeing the scene. The violation of Mr. Fearon’s rights under section 8 of the Charter of Rights and Freedoms allowed the case to make it all the way to Canada’s highest court.

Mr. Fearon’s counsel argued that his Charter rights were violated when the police searched his phone without a warrant after his arrest.  The search of Mr. Fearon’s cell phone uncovered a draft text message confirming his involvement in the robbery, in addition to a photo of a handgun.  This picture would match a gun involved in the robbery that would be recovered months later.  The appellant argued to the Supreme Court that due to the breach of section 8, the evidence collected from Mr. Fearon’s phone should be excluded.

While all seven Supreme Court Justices agreed that Mr. Fearon’s section 8 Charter rights had been breached, the majority, in a 4-3 decision decided that the evidence from the search of the cell phone incident to lawful arrest should not be excluded.  The Justices found the evidence uncovered by the search to be highly probative and relevant, verified by the uncovering of the handgun months after the search.  The refusal to exclude this evidence on Charter grounds has had a significant impact.  The police now have the right to search a phone, without a warrant, incident to lawful arrest.  This power does have limitations.  In order for the police to search your phone without a warrant, strict criteria must be met.

1) The arrest must be lawful

For the search of a cell phone without a warrant to be admissible, the arrest must be lawful. For example, the police must have reasonable grounds to believe you have committed an offence, or are about to commit an offence.

2) The search must be incidental to the arrest and police need an “objectively reasonable” reason to conduct the search.

There are three “objectively reasonable” law enforcement purposes that a search may serve: (1) protection of police, the accused, or the general public; (2) preservation of evidence (by not allowing information to be deleted or removed before reported); and (3) discovery of new evidence. The search must be justified under one of these elements. If the police can wait and obtain a legal search warrant, the search is not incidental to the arrest.

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

It is possible that police will accidentally and come across personal information or photos that are not related to the circumstances, however, they have a duty not to seek out anything on the phone that is not directly related to the purpose of their search.

4)  Police must take detailed notes of what they looked at on the device as well as how the search was conducted.

To protect the police and the accused, a detailed list is required of what was looked at and how the device was searched. The list and accompanying notes allow for outside scrutiny on the search and will aid in determining whether it is admissible or not.

There is, of course, the chance that a cell phone is password protected. The Justices in the Supreme Court ruling decided that cell phones that are password protected do not have different rights than those that are not. Leaving your door unlocked to your house does not vitiate your privacy interest in your home. Password protecting a phone will functionally provide a greater level of protection because of the right to remain silent upon arrest. In these cases, the police will have to obtain a warrant to subsequently access the password-protected device.

Recently, the case law emerging has once again pulled away from protecting our citizens’ privacy rights.  In R v Marakah [2016], the Ontario Court of Appeal found that the accused did not have a reasonable expectation of privacy in relation to text messages extracted from his co-accused’s phone. This stands in stark contrast to R v Pelucco [2015] a decision by the British Columbia Court of Appeal which held that the sender has a reasonable expectation that text messages sent will remain private.  The same court held in R v Craig [2016] that the sender of online messages had a reasonable expectation of privacy over the messages and that the intended recipient’s ability to circulate the messages had no effect on this.  Counsel in R v Marakah are currently seeking leave to appeal to the Supreme Court of Canada.  It is our hope that the Supreme Court will follow the trend in British Columbia, and support citizens’ rights to privacy.

The battle for privacy rights in relation to cell phones is far from over.  Recent case law in British Columbia indicate a desire to protect the privacy rights of Canadians, however, Ontario courts seem less likely to follow this approach.  If the case of R v Marakah is granted leave to the Supreme Court, it is very likely to be a landmark decision regarding privacy rights in the digital age.  As technology continues to evolve at a rapid rate, more and more personal information is accumulated on these mobile devices.  Protection of privacy rights as a result, has never been more important.

For further information on Canadian criminal law or to seek expert legal assistance in a criminal matter, consult a Toronto criminal defence law firm.

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This post was written by Graham_Bebbington

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