Editorial: Walking a fine line

The Ontario Court of Appeal walked a fine line in ruling on police authority to search cellphones without a warrant.

On the face of it, the facts in R. v. Fearon were troubling. After arresting Kevin Fearon in connection with a robbery investigation, the police started rifling through his phone and continued to do so without a warrant for hours afterwards when they took him to the police station. The search revealed incriminating evidence against him, including photos and text messages.

In his appeal, Fearon essentially asked the court to carve out an exception for cellphones to the doctrine of search incident to arrest given the voluminous personal information found on many devices. To the displeasure of some, the appeal court declined to do so. In particular, it found that, depending on the circumstances, searches of cellphones not protected by a password were acceptable.

Given the length of time officers ultimately looked through the cellphone without a warrant, there were definitely grounds for concern. In writing for the appeal court last week, Justice Robert Armstrong said as much while discussing the subsequent search at the police station. “In my view, the proper course for the police was to stop the examination of the contents of the cellphone when they took the appellant to the police station and then proceed to obtain a search warrant,” he wrote.

“There is no evidence that it would have been impracticable to appear before a justice to obtain a search warrant in the usual manner,” he added. “If it was impracticable for an officer to appear before a justice to obtain a search warrant, the police could have proceeded to obtain a telewarrant under s. 487.1 of the Criminal Code.”

Police, then, didn’t get off scot-free when it came to their actions in Fearon. But the appeal court, which ultimately held the initial search to be a cursory one pursuant to the doctrine of search incident to arrest, dismissed Fearon’s appeal given the connection between the robbery investigation and the potential for evidence on the cellphone.

The issue, of course, isn’t an easy one. There are certainly valid reasons to assert special protections for cellphones given the amount of information people now keep on their devices. At the same time, there’s no straightforward answer to the question of what constitutes a cursory search of a cellphone. Is looking through photos going too far? Are text messages off limits when it comes to determining whether a cellphone likely contains information relevant to the investigation?

In Fearon, the appeal court found the facts weren’t egregious enough to carve out an exception for cellphones. That’s a reasonable conclusion given the law as it stands. As a result, we’ll have to wait for another case for further delineation on the limits to police powers to search cellphones. Alternatively, an appeal to the Supreme Court may provide guidance on these difficult issues.
Glenn Kauth

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