The pervasiveness of “smart” technology was envisioned in part as far back as 1954 by Harold Osborne, who predicted we would all get a telephone number for life at birth.
When society adopts new technology, social institutions, including the courts, often take time to catch up with it. This was referred to as “cultural lag” by William Ogburn in 1959, who stated,
When material conditions change, changes are occurred in the adaptive culture. But these changes in the adaptive culture do not synchronize exactly with the change in material culture. There is a lag, which may last for varying lengths of time, sometimes indeed, for years.
The Supreme Court’s decision this week in R. v. Fearon could be described as exactly this type of lag, with a limited understanding of the role of cell phones in modern life, and a lack of appreciation of how searches of cell phone contents constitute a significant and disturbing intrusion into the privacy of the criminally accused.
When the Ontario Court of Appeal ruled in this decision last year, I contrasted the court’s finding with diverging and contradictory approaches employed by lower courts in the U.S. The Supreme Court of the United States has since clarified this position in Riley v. California, with the court ruling that absent special circumstances, the constitutional protection against unreasonable search would prevent even legitimate governmental interests from outweighing the privacy interests at stake.
The Supreme Court of Canada failed to clarify the issue last year in R. v. Vu, though requiring a warrant before searching electronic equipment, and Justice Cromwell in that case explicitly stated he did not intend to rule on the search incident to arrest exception.
A split Court in Fearon dismissed the accused’s appeal, upholding the trial level decision and the Ontario Court of Appeal.
The Balancing Approach to Searching Cell Phones
Justice Cromwell, writing for the majority, introduced some safeguards to law enforcement’s authority to review the contents of a cell phone during an arrest:
 …police officers will not be justified in searching a cell phone or similar device incidental to every arrest. Rather, such a search will comply with s. 8 where:
(1) The arrest was lawful;
(2) The search is truly incidental to the arrest in that the police have a reason based on a valid law enforcement purpose to conduct the search, and that reason is objectively reasonable. The valid law enforcement purposes in this context are:
(a) Protecting the police, the accused, or the public;
(b) Preserving evidence; or
(c) Discovering evidence, including locating additional suspects, in situations in which the investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest;
(3) The nature and the extent of the search are tailored to the purpose of the search; and
(4) The police take detailed notes of what they have examined on the device and how it was searched.
Justice Cromwell carved out these restrictions to allow searches of cell phone incident to arrest in order to protect the public safety and preserve relevant evidence. He permitted a carefully tailored search, which would typically only include recently communicated information. These searches, especially if they went beyond recently conveyed information, would have to be carefully documented by the arresting officer.
In Justice Cromwell’s opinion, these limitations would address the privacy concerns around the potentially infinite storage capacity of cell phones. The police do not have an indiscriminate license to search cell phones, a parallel he drew with his own decision in Vu. The documentation of the searches, also employed in Vu, would include which applications were searched, the extent, the time, and the purpose and duration. In less serious offences, which do not involve violence, risk of public safety, property offences or drug trafficking, such searches would not normally be justified.
Cell phones should not be routinely searched to discover evidence, especially where such searches do not serve any immediate investigative purpose. The approach employed by Justice Cromwell would place the onus on law enforcement to justify how a search was conducted, and why. However, this justification on judicial review would only come on a challenge after the fact, which the dissent clearly took issue with.
The categorical exclusion approach used in the U.S. under Riley was not adopted by the majority. The only categorical exclusion in Canada to the search incident to arrest doctrine was with bodily samples in R. v. Stillman, where prompt access does little to assist law enforcement objectives. Searches of cell phones are also not “invariably” and “inherently” a privacy intrusion which would necessarily affront human dignity,
 …while cell phone searches — especially searches of “smart phones”, which are the functional equivalent of computers — may constitute very significant intrusions of privacy, not every search is inevitably a significant intrusion. Suppose, for example, that in the course of the search in this case, the police had looked only at the unsent text message and the photo of the hand gun. The invasion of privacy in those circumstances would, in my view, be minimal. So we must keep in mind that the real issue is the potentially broad invasion of privacy that may, but not inevitably will, result from law enforcement searches of cell phones.
[emphasis in the original]
Even where a search is inherently humiliating and degrading, as with strip searches in R. v. Golden, the Court has placed meaningful limits on the searches rather than employing a blanket exclusion. As significant as the privacy interests are with cell phones, Justice Cromwell stated that it is not as intrusive as a strip search.
Justice Cromwell rejected the “reasonable and probable grounds” approach employed in other cases, suggested by the intervenor, the Canadian Association of Chiefs of Police. He stated that such a threshold would undermine the law enforcement objectives and preclude prompt access to information needed for the immediate purposes of an investigation.
Justice Cromwell also rejected the special (“exigent”) circumstances approach used by SCOTUS in Riley, noting that only one case in Canada had adopted this approach to date. This standard would require too much information by the police at an early point in the investigation, which would effectively prohibit the search of cell phones except for in exceptional circumstances.
Closing the Window on our Private Lives
The dissent was delivered by Justice Karakatsanis, who from the outset emphasized the revolutionary nature of technology and how they operate as windows into our private lives. Although pre-authorization is not always feasible, the law generally holds that a warrantless search is prima facie unreasonable.
Both sides recognized the high privacy interest in cell phones, and did not adopt the briefcase or receptacle analogy employed in previous common law cases but rejected in Vu. However, Justice Cromwell’s template for a meaningful limit on cell phone searches incident to arrest is too complicated and does not provide adequate protection, given the sensitive nature of the information at hand. The meaningful limits approach does not create a meaningful restriction on the powers of law enforcement, given the sheer volume of personal information which can be accessed through an individual’s cell phone.
Justice Karakatsanis emphasized the ability of individuals to choose which audiences they share their ideas ideas, habits, experiments and movements outside of the public gaze, and this private space is necessary to develop as distinct individuals and develop intimate relationships. This private inner life is not only intricately connected to the Charter, but also is a prerequisite for our social and political structures in Canadian society.
The common law already allows for exceptions to warrants where there are exigent circumstances at stake, when there is a risk to the safety of the public or law enforcement, or for the preservation of evidence. As neither concern was present in this case, Justice Karakatsanis held the search was both unreasonable and unconstitutional.
If a cell phone is being used to call for violent backup, this would constitute an exigent circumstance justifying a warrantless search of a cell phone. The possibility of destruction of evidence itself is not enough to justify a search. The decision in Riley outlined some of the alternatives referred to in the dissent which law enforcement have available to them,
…as to remote wiping, law enforcement is not without specific means to address the threat. Remote wiping can be fully prevented by disconnecting a phone from the network. There are at least two simple ways to do this: First, law enforcement officers can turn the phone off or remove its battery. Second, if they are concerned about encryption or other potential problems, they can leave a phone powered on and place it in an enclosure that isolates the phone from radio waves. Such devices are commonly called “Faraday bags,” after the English scientist Michael Faraday. They are essentially sandwich bags made of aluminum foil: cheap, lightweight, and easy to use. They may not be a complete answer to the problem, but at least for now they provide a reasonable response. In fact, a number of law enforcement agencies around the country already encourage the use of Faraday bags.
The very fact that a cell phone is a “virtual gold mine of information” is the basis for attracting such a strong privacy interest.
Protecting our Virtual Assets from Prying Police
The Court of Appeal had emphasized at para 75 the fact that this cell phone was not password protected was the main reason why a warrantless search was acceptable.
Justice Karakatsanis criticized this position stating that the failure to lock a phone does not constitute a waiver of privacy interest or demonstrate a diminished expectation of privacy. Cell phones are now as ubiquitous as house keys, and arresting an individual who has their house key on them or because they leave their front door unlocked does not give law enforcement the right to enter their home. The police cannot take a cursory walk inside a suspect’s home without a warrant simply because it is a cursory infringement of the owner’s privacy.
The respondents suggested there may be some difficulty in preserving evidence in order to bypass password protection of a phone which is unlocked at the time of arrest, presumably due to use. Justice Karakatsanis indicated there was no evidence this was a pervasive problem. More troubling to me is that law enforcement may now seek to time their arrests of suspect specifically when they see a phone being used in order to circumvent password protection as a means of privacy control applied by the majority.
The biggest oversight by the majority appears to be a failure to understand how cellphones are used, or will potentially be used in the years to come. The dissent acknowledged at para 152 that for the digital generation, smart phones contain more personal information than the private home. They are the most intimate thoughts and feelings we have in our society today, and the greatest intrusion someone can impose on our lives.
The dissent also noted at para 164 that even a cursory inspection of photos can reveal private and personal images of individuals, including third parties who are not even subject to the arrest. A Pew Research Centre report earlier this year indicated that cell phones are extensively used by 66% of married adults or those in committed relationships. Nearly a fifth of these individuals have received a sexually suggestive nude or nearly nude photos of someone they know on their phone.
We can suggest that perhaps this content should not be prudently shared on electronic devices, but the reality is there is almost always a subjective expectation of privacy for these images. Applications such as Snapchat or Tinder are routinely used to send communications which are intended to be exclusively private to the recipient, accessible only by the smartphone receiving it, and now the police officer who is making a cursory search of the phone without a warrant.
The warrantless search of cell phones, password protected or otherwise, therefore constitutes in my opinion the greatest privacy intrusion we can employ in modern society. These searches are potentially more humiliating and degrading than the strip searches allowed after Golden, as there is no guarantee the search will be focused on the criminally accused.
The lower reasonable expectation of privacy of an individual who has been lawfully arrested, employed by the majority at para 56, simply is an inadequate justification for such wide-sweeping power. Even if law enforcement takes copious notes of the content reviewed, there is no way to assess the relevance until the content is actually reviewed. What a police offer sees simply cannot be unseen, even if there is justification provided after the fact.
Societal values and technological practices have changed at a rapid pace, and given our legislative process it is unrealistic to expect our statutes to keep up. The least we can do is signal what acceptable practices are by our courts. In my opinion, the majority has failed to do so in this case. We can only imagine that Lori Douglas, had she been appointed to the Supreme Court, would probably have a very different take on the expectation of privacy than the majority does. And this is exactly the reason why we need a judiciary, even at the highest levels of this court, who reflect the diversity of experiences and life found across Canada.
Osgoode Hall’s Susan Drummond illustrates this point in a piece, I can Never be a Judge,
I have four law degrees, two social work degrees, and 15 years of experience as a legal scholar and law professor. But I have a photograph “out there.” And someone close to me threatened to send it to my employer, Osgoode Hall Law School. In solidarity with the Hon. Justice Lori Douglas, I can proudly say that, as it now stands, I will never be a judge.
I am from the analogue generation. My guess is that the digital generation of female lawyers and law students is exponentially more exposed than I ever was.
In The Dark Night (2008), Batman employs the technology developed by Lucius Fox to create a surveillance system based on cell phone transmissions throughout Gotham. Fox is horrified, despite Batman’s noble intentions and laudable objectives of fighting organized crime:
Lucius Fox: Beautiful… unethical… dangerous. You’ve turned every cellphone in Gotham into a microphone.
Batman: And a high-frequency generator-receiver.
Lucius Fox: You took my sonar concept and applied it to every phone in the city. With half the city feeding you sonar, you can image all of Gotham. This is *wrong*.
Batman: I’ve gotta find this man, Lucius.
Lucius Fox: At what cost?
Batman: The database is null-key encrypted. It can only be accessed by one person.
Lucius Fox: This is too much power for one person.
Batman: That’s why I gave it to you. Only you can use it.
Lucius Fox: Spying on 30 million people isn’t part of my job description.
It is a far greater wrong to allow hundreds of thousands of law enforcement officers to search cell phones without a warrant, even with the limitations placed by the majority. It is far too much power for any one man, let alone 70,000 men and women.
The cost of this law enforcement objective is to turn our knights, who serve and protect, into something which should be feared and afraid of, even if completely innocent of any crime.