Right to Privacy In Searching Mobile Phones Without a Warrant

Right to privacy in a cell phone search by officers without a warrant is considered by the Supreme Court of Canada.

This summary reviews the decision of the Supreme Court of Canada in R v. Fearon, 2014 SCC 77, [2014] S.C.R. 621, in balancing the right of privacy and the needs to law enforcement to a cell phone search without a warrant. The decision of the S.C.C. was split in considering how to balance privacy rights and law enforcement rights.

Cell Phone Search – R v. Fearon

The Supreme Court of Canada in R v. Fearon 28 provides very limited guidance on when a police officer has the right to search a mobile phone of an arrested individual prior to obtaining a warrant.

The rights of privacy of an individual during a cell phone search comes into play here and to what extent those rights can be infringed.

Cell Phone Search Case Summary – R v. Fearon

A jeweller was robbed by a group of robbers at gunpoint who escaped. The police arrested and charged Kevin Fearon with armed robbery and during the course of the arrest, the policy seized Fearon’s cell phone. During the search, the police found a draft text about the robbery and a photo of the gun that looked similar to the gun used in the robbery. The investigating officers did not document the nature and extent of the search.

In this case, the police arrested an individual, Kevin Fearon, who they suspected was one of the robbers who stole from a jeweller at gunpoint. They also searched his mobile phone and later obtained a search warrant allowing them to search the phone where they did a more thorough search.

At trial, Fearon argued that the cell phone search violated section 8 of the Canadian Charter of Rights and Freedoms (i.e. right not to be subject to an unreasonable search).

The Crown argued that it was not a violation to do the cell phone search and regardless, section 24(2) of the Charter would permit the evidence to be admitted (i.e. having regard to all the circumstances and it would not bring the administration of justice into disrepute).

The SCC noted that the search of an arrested individual’s mobile phone without a warrant is only appropriate in exigent circumstances as it is a “very severe” intrusion on their privacy.

Conclusion: Right to Privacy During Cell Phone Search a Grey Area

The SCC decision was split in balancing an individual’s right to privacy with the rights of law enforcement in doing a cell phone search and acknowledged it was a difficult decision.

The court concluded that searching cell phones without a warrant is a grey area. While the search of a mobile phone without a warrant is a breach of section 8 of the Charter, there are limited circumstances where the evidence can still be admitted into court pursuant to section 24(2) of the Charter. The Justices in the minority felt that the intrusion into Fearon’s privacy was severe.

Consequently, they concluded that officers must err on the side of caution. The onus is on the police officers to take “detailed and meticulous notes” to demonstrate reasonableness and the purpose and scope of the investigation if searching a mobile phone without a warrant.

In my view, I can understand why the SCC was split and that this is just a difficult decision to make. On the one hand, you need to balance the administration of justice with an individual’s right to privacy and has to be evaluated on a case by case basis.

If you have a question about whether your privacy rights have been infringed or needs help with drafting a privacy policy, contact us.

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