In a controversial judgement, the Supreme Court of Canada recently decided that police officers are not required to obtain a warrant to search a suspect’s cellphone. The 4-3 decision drew criticism from privacy experts, including the Canadian Civil Liberties Association.
A director of that organization compared warrantless cellphone searches to “finding a house key in a pat down search and then using that key to conduct a warrantless search of the arrestee’s house.”
In their strongly written opinion, the three dissenting judges further pointed out that cellphones are not weapons, nor are they briefcases or bags in which weapons could be concealed. Cellphones are also links to large amounts of private information, and to ensure the protection of Canadians’ privacy, the dissenting judges favored requiring a warrant or a “tele-warrant” for a cellphone search.
However, the majority ruling upheld the right of police to conduct warrantless searches of cellphones, given that the following requirements are met:
- The arrest is lawful
- The search must relate directly to the specific investigation
- The search must happen promptly
- “Detailed notes” must be taken by police to indicate what kind of private information was seen and for how long
The legal and practical implications of the ruling remain to be seen. What is certain is that individuals accused of crimes based on cellphone evidence will need an effective defence strategy to challenge the validity of the evidence or have it excluded from court. Illegal searches are more common than you might think, and an experienced criminal defence lawyer can assess the facts of your case to determine whether police violated your Charter rights.
