Ontario’s top court says police can look through a suspect’s phone upon arrest if it’s not password-protected.
The ruling from the Court of Appeal for Ontario comes in the case of Kevin Fearon, who appealed a 2009 robbery conviction by arguing that police violated his Charter rights by looking through his phone after his arrest. Fearon was arrested after a jewellery stall was robbed at a Toronto flea market.
Police found pictures of a gun and cash as well as an incriminating text message that read, “We did it were the jewlery at nigga burrrrrrrrr” — which must be the single greatest thing ever included in a court document in Canada.
Although the decision opens the door for police to look at the phones of suspects, the ruling is still fairly limited. In Fearon’s case, because his phone wasn’t a “mini-computer” — i.e. a smartphone — it was subject to less protection since his photos and texts were easily available. Even so, the court said only a “cursory look” was acceptable; any more than that would likely still have required a warrant.
If the cell phone had been password protected or otherwise “locked” to users other than the appellant, it would not have been appropriate to take steps to open the cell phone and examine its contents without first obtaining a search warrant.
Although the court did not set any new rules for cellphone searches, this decision would seem to be part of a trend of greater protection for electronic devices. In last year’s Tori Stafford case, murderer Michael Rafferty’s computer was excluded as evidence because his laptop had been searched without a separate search warrant. Justice Thomas Heeney decided that a computer these days is more of a “place” than a “thing.”
We all keep a lot of our lives on our cellphones and computers, and while allowing police a “cursory look” at your stuff feels invasive, the trend may actually be toward greater privacy protections as electronics become more and more sophisticated. Just remember to lock your devices and encrypt your information.