As young people, our cell phones contain our entire lives. Cell phones contain our banking information, our private text messages, access to social media platforms and private tranches of information pertaining to our personal lives. In many ways, cell phones are simply extensions of ourselves.
But the Supreme Court of Canada doesn’t necessarily think that these cell phones, so central to our lives, are worthy of legal protection in certain circumstances. So goes a recent decision of the Court.
In the recent case of R. v. Fearon, the Supreme Court ruled in a narrow 4-3 decision that cell phones can be searched after the arrest of a suspect without a warrant, if certain conditions are followed. Such a decision, of course, is an attempt by the Court (and the legal system as a whole) to grapple with emerging technological issues and the use of electronics as they relate to crime. From terrorism to international drug cartels to corporate crime, the use of technology has allowed those wanting to skirt the law the leverage to do so more than ever before.
A big mistake to make would be to react to these threats in an overly robust way. The privacy of the average Canadian must be paramount in designing tactics to fight the advent of international networks of crime. We wouldn’t expect a stranger to rifle through our phone. This is why the police are restricted in their ability to search us, our homes and our cars; the Charter of Rights and Freedoms protects our reasonable expectations of privacy from unreasonable searches and seizures. Undoubtedly, our phones fall under this ambit.
But those who wrap themselves in the cloak of the Charter, who are constantly on guard for governmental overreach (and of course in the internet era, these civil libertarians are legion), shouldn’t wring their hands over this ruling. In fact this ruling is well designed to protect public safety while balancing privacy interests.
First of all, police can only search cell phones after a lawful arrest. This seems obvious, but it’s an important distinction. The police do not have a power writ large to search cell phones.
Secondly, the search needs to be specifically tailored to a reasonable purpose. This means that the search needs to serve one of three purposes: it needs to protect the public or the person being searched, it needs to preserve evidence, or it needs to discover new evidence. So, in situations where these three purposes are not served, the police need to get a warrant. Generally, the information gleaned from the search should be related to the crime, so the power serves to protect against criminal action. Only recent text messages, the call log and the like are warranted for search.
Finally, the police need to keep a record when they conduct the search as to what they viewed on the phone, how long they viewed it and the reason why they viewed it.
Taken together, all of these limitations make the search power reasonable. All of us are aware that communication occurs primarily via text these days. Criminals are no exception to this rule. They use technology to facilitate their purposes, whether it be armed robbery, drug trafficking or otherwise. Again, text-based communication allows those wanting to break the law to do so with relative ease. Criminal planning and conspiracy have never been easier — people can easily hide their tracks nowadays and erase their technological footstep. The purpose of this search is to minimally affect civil liberties while keeping pace with creative criminals. All of our business occurs via text message; why wouldn’t the business of criminals occur in that same place?
Taken in this light, we should all view with suspicion those who try to shine a light on something that doesn’t exist. That is, there is no overreach of government power here. Police have a job to do, and they should be given the tools to do so limited only by the constitution of this country. Of course, there will be the skeptics — those who believe the police will abuse their power. But no law should be framed around suspicious minds. We need to believe in the police.
So, all told, no need to fret. Your phones, and your safety, are not at risk.