Can the police search your cell phone in Canada?

Can the police search your cell phone in Canada?

In the digital age, our smartphones have transformed into repositories of our personal information. As a result of which, a particularly complex concern comes to the fore when law enforcement agencies seize and search digital devices during arrests. Such scenarios often give rise to a range of significant concerns, highlighting the extent to which the content stored in the device can be accessed during such searches. It is at this juncture, that the question about the need to strike a balance between protecting the privacy of the person so arrested and carrying out the duties enforced by the law should be addressed diligently. 

What should you know about the cell phone searches by the police upon arrest?

As a criminal defence lawyer, I am frequently asked questions like, “Can the police search my phone?” Are they allowed to coerce me to demand my password? What are my rights when it comes to the content stored on my device? These concerns highlight the evolving intersection between technology, personal privacy, and the power conferred upon the law enforcement officers. As the lines between digital and physical worlds blur, it’s crucial to comprehend the intricacies of phone searches by the police and the legal safeguards that protect your rights. 

Moreover, many of us are unsure about our rights and the extent of police authority when it comes to searching our phones or digital devices. This uncertainty underscores the need for clarity and understanding about what is legally permissible in these situations. Therefore, below are some of the important concerns regarding phone searches by the police in Canada that I, being a criminal defence lawyer in Canada, have tried to address to help you navigate the delicate landscape of personal privacy in the digital age. 

When can the police search your cellphone in Canada?

The Supreme Court of Canada, while deciding the legality of the search and admissibility of evidence collected during the said warrantless search of the accused’s cell phone in R v Fearon, listed out four conditions which are mandatory to deem any search of a cell phone or a digital device seized during the arrest as lawful. 

• Lawful search: The foremost condition is to analyze if the search is Charter compliant. Section 8 of the Charter of Canadian Rights and Freedoms provides protection against unlawful search and seizure thereby upholding the accused’s right of privacy. As highlighted in R. v. Tessling, the Charter jurisprudence guarantees a sphere of privacy. However, it is important to note that this sphere is not absolute in nature. The scope of Section 8 of the Charter of Canadian Rights and Freedoms was explained early on in Hunter v. Southam, wherein it was held that this right of privacy affords only a responsible expectation of privacy. This further means that the state can interfere with the accused’s right of privacy in matters involving public order.
• Incidental to arrest: The search must be directly connected to the arrest and serve valid law enforcement purposes, such as protecting individuals, preserving evidence, or discovering new evidence.
• Scope of search: The nature and extent of the search must align with its purpose. Generally, recent communications like texts and emails are deemed reasonable for search, but a broader search might be considered unreasonable.
• Detailed documentation: Law enforcement is required to meticulously document what they searched on your phone, how they conducted the search, the purpose behind it, and the duration of the search. These records ensure transparency and accountability.

What are your Charter rights against unlawful phone searches?

Section 8 of the Canadian Charter of Rights and Freedoms guarantees the right to be secure against unreasonable search and seizure. This encompasses protection against arbitrary invasions of privacy, including the search of your phone without proper justification. Your right to privacy extends to the digital realm, reinforcing the necessity for law enforcement to adhere to the established conditions before searching your phone.

Can the police coerce you to give your phone password?

The right to remain silent and the right against self-incrimination, as provided under section 7 and section 11(c) of the Charter, respectively, safeguard the accused from any coercion or compulsion to divulge information about passwords and usernames to the police upon arrest. Even if the police are authorized by a warrant to search your phone, you are not obligated to aid them in unlocking it. While the police may attempt to access your phone through technological analysis, your rights to remain silent and shield yourself from self-incrimination remain fully intact.

How can I protect myself from unlawful search at the time of the arrest? 

Section 10 of the Charter provides the accused with certain vital rights upon arrest or detention. One such vital right is the right to retain and instruct counsel without delay. If you find yourself in a situation where you are arrested and your phone or laptop is seized, it’s highly recommended to be aware that law enforcement is obliged to respect your fundamental right to promptly contact a lawyer. As there are chances that there might be some personal information, which even if irrelevant, can be potentially used against you, to implicate you in connection with the crime for which the arrest has been made. This fundamental right ensures that your interests are upheld and that you have access to prompt legal advice.

Can the evidence collected from the cellphone during a warrantless search be excluded?

The doctrine of exigency, as outlined in section 529(3) of the Canadian Criminal Code, provides for the common law standards permitting law enforcement to enter a dwelling without a warrant if there exists a reasonable belief that it’s necessary to prevent bodily harm, death, or the imminent loss/destruction of evidence. The same standard of observing exigent circumstances extends to phone searches. 

A warrantless search of a cell phone during an arrest is considered lawful only when:

• There exists a valid reason to believe that the search is necessary to avert an imminent safety threat; or 
• When there are reasonable grounds to believe that the imminent loss or destruction of evidence can be prevented through such a search. 

Any failure to meet these criteria can be challenged as a violation of section 8 of the Charter and the accused may use section 24(2) of the Charter  to seek to exclude the evidence collected during the said warrantless search. 

As highlighted by the Supreme Court of Canada, through a myriad of judgements, it is important to seek a balance between upholding the right to privacy and protecting the public interest on a large scale. The need for proactive measures to uphold the right of privacy rather than coursing towards retroactive remedial measures after the right has been infringed was reiterated in Hunter v. Southam Inc. early on.  The purposive approach behind the interpretation of section 8 of the Charter provides for preventing the unlawful or unjustified searches before they are even carried out.  

As we learn about the intersecting nuances involving technology and privacy, understanding your  Charter rights becomes absolutely important. The evolving landscape of technology and law demands vigilance and knowledge to protect your digital and personal privacy. If you ever encounter a situation involving phone searches by the police, I recommend not to hesitate to reach out for a free consultation at Shory Law. Our team stands ready to provide you with expert advice, safeguard your rights, and ensure your privacy remains uncompromised. Contact us today at 403-216-1199 and let us stand with you to uphold your privacy in this digital age.