On Friday September 7, 2012 the Ontario Court of Appeal will consider the case of R. v. Fearon, which will examine whether the police need to get a warrant before searching an arrested person’s cell phone. Generally, the police do not need a warrant to search a person who under arrest, and regularly do look through arrestees’ bags and pockets to ensure officer safety and secure potential evidence. Fifteen years ago this kind of search might turn up a wallet, some papers, maybe an address book. Today, however, we can carry our entire digital existence – phone records, contact lists, emails, social media profiles, location records, photos and much more – in our pockets. The privacy implications of giving police warrantless access to this information upon arrest are enormous.
The CCLA will appear before the Court to argue that, absent exigent circumstances such as danger to life or imminent loss of evidence, the police should be required to get a warrant before searching a person’s hand-held electronic device. This would not be the first time a court has carved out an exception to the police power to search upon arrest. The Supreme Court of Canada has ruled that automatically authorizing searches upon arrest in other privacy-invasive contexts such as strip searches or taking DNA samples would violate our constitutional right to be free from unreasonable search and seizure. The vast, detailed, intensely personal information that be accessed through our cell phones should not available for state inspection simply because an individual has been arrested and there may be evidence on his or her phone. Warrants are democratic instruments essential for the protection of privacy – lets use them.
To read CCLA’s factum click here.