More and more information from your cell phone can be used against you at a criminal trial.
The Supreme Court of Canada in R v Fearon (2014) ruled that the police can conduct a limited search of a cellphone and similar devices after a lawful arrest as long as certain criteria (discussed below) is met.
Searching a cellphone upon arrest touches on section 8 of the Charter of Rights and Freedoms. Section 8 of the Charter gives everyone the right to be secure against unreasonable search or seizure. In all section 8 cases, the Supreme Court of Canada is trying to strike a balance between the need for police to investigate crime and the public’s right to be left alone by the state.
Only unreasonable searches or seizures are prohibited, reasonable ones are permissible under the law. The Supreme Court of Canada in R v Collins held that for the purposes of section 8 of the Charter, a search or seizure is reasonable if it meets the following criteria:
the search is authorized by law
the law itself is reasonable
and the search was carried out in a reasonable manner.
A search for the purposes of section 8 is only conducted if there is a reasonable expectation of privacy in the matter being searched. For instance, the Supreme Court of Canada has held that there is no reasonable expectation of privacy in items that are abandoned (see R v Patrick).
The Supreme Court of Canada in R v Vu has held that cellphones attract a high reasonable expectation of privacy due to their sophistication and storage capacity, cellphones can reveal intimate information about the lifestyle choices of the owner. The court has said that a smartphone is the functional equivalent of a computer.
Once an individual is arrested, the police have a common law power to search the arrestee incident to arrest without a warrant for the purposes of protecting the officer, the accused or the public, preserving evidence or to discover additional evidence.
Four conditions must be met in order for the search of a cell phone or similar device incidental to arrest to comply with section 8 of the Charter:
The arrest must be lawful;
The search must be truly incidental to the arrest. The searches must be done promptly upon arrest in order to effectively serve the law enforcement purposes. These include (a) protecting the police, the accused or the public; (b) preserving evidence; and (c) discovering evidence, but only if the investigation will be significantly compromised without the ability to promptly conduct the search);
The nature and the extent of the search must be tailored to its purpose. 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. The notes should generally include the applications searched, the extent of the search, the time of the search, its purpose and its duration. This is important for effective after-the-fact judicial review.