In a crime ruling that earned it rare praise from the federal government, the Supreme Court of Canada said police may search cellphones without a warrant when they make an arrest.
Cellphones are the bread and butter of the drug trade, the majority said in a 4-3 ruling. It said police have been given the "extraordinary power" to do warrantless searches during an arrest, under common-law rules developed by judges over centuries, because of the importance of prompt police investigations. Until now, those searches typically included purses and briefcases. Civil liberties groups had urged the court to exempt cellphones.
Kevin Fearon was suspected in the armed robbery of a jewellery kiosk at a Toronto flea market in 2009. When he was arrested, a police officer found a cellphone on him and looked quickly through texts and photographs. The officer found a message saying "We did it," and he found a picture of a handgun. Mr. Fearon, convicted at his trial, argued that the search of his cellphone was illegal. The Supreme Court said that from now on, police would need to provide detailed notes on what it searched and found. It upheld Mr. Fearon's conviction.
"Prompt access by law enforcement to the contents of a cellphone may serve the purpose of identifying accomplices or locating and preserving evidence that might otherwise be lost or destroyed," Justice Thomas Cromwell wrote for the majority, joined by Chief Justice Beverley McLachlin and Justices Richard Wagner and Michael Moldaver.
The majority said the search must be tailored to its purpose, which will generally mean that only recent e-mails, texts, photos and the call log will be available.
Justice Minister Peter MacKay lauded the ruling. "That decision to me seems to strike the exact balance that Canadians would expect when it comes to protecting the privacy rights, while at the same time putting moderate tools in the hands of police to protect Canadians when it comes to their investigations," he told reporters.
The Supreme Court has repeatedly objected to the Conservative government's tough crime laws in the past three years. Its approach to cellphone searches is in contrast to that of the United States Supreme Court; it ruled last summer that police need a warrant to search cellphones as part of an arrest.
The minority on the Canadian court said the majority have given the police "extraordinary power," tossing the phrase back at their colleagues. Searches may go on endlessly in a seized phone, which can continue to generate evidence long after the arrest, Justice Andromache Karakatsanis wrote, joined by Justice Rosalie Abella and Justice Louis LeBel. Justice Karakatsanis was the only judge appointed by Prime Minister Stephen Harper in the minority. Chief Justice McLachlin was the only non-Harper appointee in the majority.
Benjamin Berger, a law professor at York University's Osgoode Hall Law School in Toronto, said the court is softening rights protections. He pointed to the first search-and-seizure ruling under the Charter of Rights and Freedoms in the 1984 case Hunter v. Southam, when the Supreme Court said that warrantless searches are inherently unreasonable. "Those strong rights protections of the early Charter years are very firmly in the rear-view mirror."
The court has taken a strong stand in other recent cases for the privacy of personal computers. It ruled last November that a police warrant for a house search in a marijuana grow-op case did not give the police the power to search computers or cellphones found in the house, unless a judge had specifically given permission to police to do so.